[Federal Register Volume 62, Number 173 (Monday, September 8, 1997)]
[Proposed Rules]
[Pages 47167-47178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23722]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 292
RIN 0596-AB39
National Recreation Areas; Smith River National Recreational Area
AGENCY: Forest Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This notice of proposed rulemaking sets forth the procedures
by which the Forest Service proposes to regulate mineral operations on
National Forest System lands within the Smith River National Recreation
Area. Required by statute, this proposed rule would supplement existing
Forest Service mineral regulations. The intended effect is to allow for
mineral operations in a manner consistent with the purposes for which
Congress established the Smith River National Recreation Area.
DATES: Comments must be received in writing by November 7, 1997.
ADDRESSES: Send written comments to Director, Minerals and Geology
Management Staff, MAIL STOP 1126, Forest Service, USDA, PO Box 96090,
Washington, DC 20090-6090. All comments, including names and addresses
when provided, will be placed in the record and are made available for
public inspection and copying.
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 resources * * *.'' 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 fisheries and water quality. Subject to
valid existing rights, Congress prohibited locatable mineral
operations, prohibited mineral leasing (including leasing of geothermal
resources), and limited the extraction of 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 in certain areas specifically excluded from the SRNRA by the
Act.
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. There are also four
areas within the exterior boundary of the SRNRA that are expressly
excluded from the provisions of the Act.
One of the eight management areas established by the Act is the
Siskiyou Wilderness, most of which was established on September 26,
1984. The Gasquet-Orleans Corridor was added to the Siskiyou Wilderness
by the Act in 1990. The Act specified that the Siskiyou Wilderness be
managed pursuant to the provisions of the Wilderness Act. In accordance
with section 4(d)(3) of the Wilderness Act, the federal lands within
the Siskiyou Wilderness (excluding the Gasquet-Orleans Corridor
addition) were withdrawn from the operation of the mining and mineral
leasing laws, subject to valid existing rights, as of September 26,
1984.
The Act also redesignated the following rivers or river segments
and some of their tributaries 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.
These same rivers and most of the designated tributaries had previously
been designated components of the Wild and Scenic Rivers System on
January 19, 1981, pursuant to section 2(a)(ii) of the Wild and Scenic
Rivers Act. The Act designated as wild segments two tributaries which
had not been designated on January 19, 1981--Peridotite Creek,
tributary to the North Fork of the Smith River; and Harrington Creek,
tributary to the South Fork of the Smith River which is within the
Siskiyou Wilderness. The Act also
[[Page 47168]]
changed the classification of some tributaries designated in 1981 from
recreational to scenic or wild. For example, the lower 2.5 mile segment
of Myrtle Creek, tributary to the Middle Fork of the Smith River, was
reclassified as wild. In the Act, Congress directed that these wild and
scenic rivers and their designated tributaries 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
would apply. In accordance with section 9(a)(iii) of the Wild and
Scenic Rivers Act, the federal lands within segments of wild and scenic
rivers classified ``wild'' are withdrawn from the operation of the
mining and mineral leasing laws, subject to valid existing rights.
Consequently, there are three different dates of withdrawal which
apply to federal lands within the SRNRA. Federal lands within segments
of the aforementioned five wild and scenic rivers that were originally
classified ``wild'' were withdrawn from the operation of the mining and
mineral leasing laws subject to valid existing rights on January 19,
1981, pursuant to the Wild and Scenic Rivers Act. Federal lands within
the Siskiyou Wilderness (excluding the Gasquet-Orleans Corridor
addition) not previously withdrawn were withdrawn subject to valid
existing rights on September 26, 1984, pursuant to the Wilderness Act.
The remaining federal lands in the SRNRA (including segments of the
aforementioned wild and scenic rivers that had originally been
classified ``scenic'' or ``recreational'' and the Gasquet-Orleans
Corridor addition to the Siskiyou Wilderness) were withdrawn subject to
valid existing rights on November 16, 1990, pursuant to the Act.
Mining and prospecting for minerals have been an important part of
the history of the Smith River area since the 1850's. Mining operations
within the Smith River area historically have 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. As of May 1997,
there were approximately 305 mining claims, covering about 7,700 acres
of National Forest System lands within the SRNRA. However, none of
these claims are for mill site locations. There are no active
operations on lands with outstanding mineral rights. As of July 1,
1997, two plans of operations have been approved for the 1997 operating
season.
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
United States mining and mineral leasing laws (including laws governing
the leasing of geothermal resources) subject to valid existing rights.
As noted earlier, the withdrawal would apply only to those federal
lands which had not previously been withdrawn under the authority of
the Wild and Scenic Rivers Act or the Wilderness Act.
Section 8(b) of the Act precluded the issuance of patents for
locations and claims made under United States mining laws prior to the
establishment of the SRNRA.
Section 8(c) of the Act prohibited locatable mineral operations
within the SRNRA except where valid existing rights are present. This
subsection also prohibited the issuance of new mineral leases for lands
in the SRNRA and, except where valid existing rights are present,
prohibited operations on existing mineral leases for lands in the
SRNRA. Section 8(c) further prohibited the issuance of new contracts or
permits for lands in the SRNRA authorizing the extraction of mineral
materials such as stone, sand, and gravel unless those mineral
materials are to be used in the construction and maintenance of roads
and other facilities within the SRNRA and/or the excluded areas.
Finally, section 8(c) prohibited operations conducted pursuant to
existing mineral material contracts and permits, except where valid
existing rights are present.
Section 8(d) directed the Secretary to promulgate supplementary
regulations to promote and protect the purposes for which the SRNRA was
designated.
The only locatable mineral development activities that may occur in
the SRNRA are (1) those for the purpose of gathering information to
confirm or demonstrate a discovery of a valuable mineral deposit made
prior to the date that the lands at issue were withdrawn from the
operation of the United States mining laws; (2) those for the purpose
of obtaining evidence for a mineral contest hearing; and (3) those for
which the Forest Service has confirmed that valid existing rights are
present and for which the Forest Service has issued the required
authorization for the proposed operations.
Mineral material operations may also occur in the SRNRA pursuant to
contracts or permits issued on or after November 16, 1990, providing
that the mineral materials are to be used in the construction and
maintenance of roads and other facilities within the SRNRA and/or the
excluded areas. Exercise of outstanding mineral rights may also occur
in the SRNRA after the Forest Service has confirmed that those rights
are present and has issued any required authorization for those
proposed operations.
On or about November 8, 1994, California Nickel Corporation (the
``Corporation''), the largest mining claim holder in the SRNRA, filed
suit against the Department of Agriculture in the United States
District Court for the Northern District of California alleging
violations of the Act (California Nickel Corporation v. Glickman, No.
C94-3904 DLJ (N.D. Cal.)). Specifically, the Corporation alleged that
the Department had unreasonably delayed in promulgating the subject
regulations which are required under the Act. The Forest Service did
not disagree that Section 8(d) requires the promulgation of
regulations; and, in fact, the agency had made some preliminary
progress in developing regulations prior to the initiation of this
lawsuit.
Following the publication of final supplementary regulations by the
Forest Service in the Federal Register on April 3, 1996, the
Corporation amended its complaint to challenge the substance of the
final regulations. Among other things, the Corporation alleged that the
final rule was arbitrary and capricious and violated the due process
protections afforded under the United States Constitution.
The Government disagreed. However, on March 14, 1997, the district
court agreed with the Corporation and set aside the April 3, 1996,
final supplementary regulations. Specifically, the court held that the
provision in the final rule which limited to five years the period for
which a plan of operations may be approved was arbitrary and
capricious, because the agency had failed to adequately address whether
such a provision might result in a taking of private property. The
court additionally held that the failure to establish a timetable for
the Forest Service's review of plans of operations was arbitrary and
capricious, because the rationale for not having a timetable had not
been adequately presented. Finally, the court held that the Forest
Service's failure to include a provision in the final rule that would
enable an operator to obtain review by the Department of the Interior
of a Forest Service determination that the operator did not possess
valid existing rights was a denial of due process.
[[Page 47169]]
Although the Department respectfully disagrees with the district
court's analysis of the legal sufficiency of the April 3, 1996, final
rule, it chose not to seek an appeal before the Court of Appeals for
the Ninth Circuit, since it would inevitably add more time to what has
already become a lengthy process. Rather, the decision was made to
modify those provisions of the April 3, 1996, final rule which the
district court deemed objectionable, in a way that would ensure that
the purposes for which Congress established the SRNRA would not be
compromised. This new proposed rule reflects that balance.
Provisions of the Proposed Rule
This proposed rule has been prepared pursuant to section 8(d) of
the Act and it addresses the concerns identified by the district court
in its March 14, 1997, decision. The proposed rule would supplement
existing Forest Service regulations pertaining to locatable mineral
operations and mineral material 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 be subject not only 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 between this rule and other applicable regulations, this
rule would take precedence to the extent permitted by law.
The proposed rule divides mineral operations in the SRNRA into
three categories--operations for locatable minerals under the United
States mining laws, operations for outstanding mineral rights, and
operations for mineral materials. The Act withdrew all federal lands
within the SRNRA from operation of the mineral leasing laws, including
the laws governing the leasing of geothermal resources, subject to
valid existing rights. Since no new leases can be issued and there are
no existing mineral leases within the SRNRA, leasing will not be
discussed in the proposed rule. In addition, 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
that reserved mineral rights are established at some later date in the
SRNRA, the agency will evaluate the applicable regulations currently
set forth at 36 CFR 251.15 to determine whether sufficient protection
can be afforded for the values for which the SRNRA was established. If
not, then the agency would evaluate the need for further amendments to
this rule.
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 resource
values identified in the SRNRA than would be provided under current
regulations alone. This additional protection would be accomplished
through: (1) The expansion of the types of mineral operations subject
to the requirement for a plan of operations; (2) the establishment of
additional reclamation standards; (3) the recognition that the Forest
Service may disapprove a plan of operations; (4) a procedure to modify
a previously approved plan of operations; and (5) expedited suspension
procedures when 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 rule in 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 mineral
operations on National Forest System lands in the SRNRA. Paragraph (c)
notes that this rule supplements existing Forest Service 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) states that, to the extent allowable 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, paragraph (e) states that certain
mineral operations approved before the effective date of this proposed
rule would continue to operate under the conditions of approval,
including the specified period of operations, providing that those
operations are based on the existence of valid existing rights.
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 this proposed rule.
Section 292.62, Valid Existing Rights
Proposed Sec. 292.62(a) sets forth the definition of ``valid
existing rights'' which the agency will use in making its determination
concerning whether an applicant may engage in mining activity in the
SRNRA. The date of withdrawal of National Forest System lands in the
SRNRA from the operation of the mining and mineral leasing laws differs
depending on whether the lands are within segments of the five wild and
scenic rivers and their tributaries originally classified ``wild'', the
Siskiyou Wilderness (excluding the Gasquet-Orleans Corridor addition),
or the rest of the SRNRA (including the scenic and recreational
segments of the five wild and scenic rivers and their designated
tributaries and the Gasquet-Orleans Corridor addition to the Siskiyou
Wilderness). These withdrawal dates are critical in the determination
of valid existing rights.
Proposed Sec. 292.62(b) clarifies the limitation of a mineral
operation that the operator is permitted to conduct in order to confirm
discovery of a valuable mineral deposit. This provision would authorize
the approval of a plan of operations for limited mineral operations for
the purposes of gathering information to confirm or demonstrate the
discovery of a valuable mineral deposit made prior to the date that the
lands at issue were withdrawn from the operation of the United States
mining laws. Such operations may be necessary in certain circumstances
to meet the requirements of Sec. 292.64(a) or to obtain evidence for an
upcoming mineral contest hearing. Case law discusses the limited
circumstances where an operator may conduct mining operations in areas
withdrawn from mineral entry prior to a final determination of valid
existing rights (United States v. Mavros, 122 IBLA 297 (1992) and
United States v. Crowley, 124 IBLA 374 (1992)). First, an operator must
demonstrate that there has been an exposure of valuable minerals. If
such a showing is made, authorization may be granted for the mining
claimant to enter the claim(s) to gather information to
[[Page 47170]]
substantiate that a discovery existed as of the date of withdrawal and,
if necessary, the date of an impending contest hearing. The scope of
the mineral operations which may be approved pursuant to this section
is limited to confirming the pre-existing discovery of a valuable
mineral deposit and confirming the extent of the mineral deposit.
Mineral operations which constitute prospecting or exploration or any
other type of activity to disclose a deposit not exposed prior to the
withdrawal are not allowed. Examples of the type of limited activities
for information gathering purposes that have been found permissible
include drilling to sample a previously disclosed valuable mineral
deposit or reopening a caved portion of a previously driven adit to
take samples of the mineral that had been exposed prior to withdrawal
of the lands from mineral entry. However, an operator has no right to
conduct any mining activities on land withdrawn from mineral entry to
find mineralization rather than to confirm the existence and extent of
valuable mineral deposits previously found.
Section 292.63, Plan of Operations Supplementary Requirements
Proposed Sec. 292.63(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 may have been
routinely conducted under a notice of intent. For example, to operate
mechanical or motorized 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.
Many information requirements specified in proposed Sec. 292.63(b)
are for 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 the operation of the United States mining laws subject
to valid existing rights. Requiring the operator to 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. 292.63(c) outlines the minimum operating information
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 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.
Proposed Sec. 292.63(c) (1), (2), and (3) would require an
operating plan to address environmental protection requirements of
Sec. 228.2 by identifying hazardous materials, toxic materials, and
similar chemical substances to be used during mineral operations and
how they will be disposed of; identifying the character and composition
of mineral wastes that will be used or generated and a proposed method
or strategy for the placement, control, isolation, or removal of the
wastes; and how public health and safety are to be maintained. Proposed
Sec. 292.63(c) (1), (2) and (3) are proposed in order to protect
natural resources from unnecessary environmental damage and to protect
human health and safety as well as wildlife from unnecessary or
dangerous risk from exposure to hazardous or toxic substances. There
are significant environmental problems associated with past mining
activities and practices that could have been avoided or mitigated if
preliminary waste characterization or the proper storage, use and
disposal of hazardous substances had occurred. For example, mining
activities when sulfide minerals (e.g., pyrite, marcasite, and
pyrrhotite) are present are likely to produce acid rock drainage
resulting in contamination of waters of the United States and
destruction of fish, amphibians, biota, and vegetation. Improper
storage or use of mercury or cyanide in gold recovery operations have
resulted in contamination of soils and surface and ground water and may
adversely affect fish and wildlife, as well as pose a risk to human
health and safety. Suction dredge operations utilize petroleum
products, which if improperly used, stored or disposed of, result in
contamination of soils and water and, potentially, groundwater, as well
as adversely affecting fish and wildlife. The SRNRA has habitat for
threatened and endangered species. It is also a popular recreation
area. If mine waste is characterized at the plan of operations stage,
then that information can be used to determine the appropriate mine
design and to determine the treatment and disposal of waste and
tailings to mitigate impacts and prevent unnecessary environmental
damage and risks to people, fish, and wildlife. Likewise, if hazardous
materials and other toxic materials, including but not limited to
pesticides, herbicides, and petroleum products, are described at the
plan of operations stage, then that information can be used to prevent
improper use, storage, and disposal.
Proposed Sec. 292.63(c)(3) would require reclamation concurrent
with operations to the extent practicable. The existing regulations at
36 CFR 228.8(g) allow the authorized officer several options for
determining when reclamation activities can occur. These activities can
take place upon depletion of the mineral deposit, during the operation
if practicable, or within one 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 allow for
the land disturbed by the mining activity to be reclaimed in the
shortest possible time. This requirement is consistent with the
statutory requirements to protect and preserve the values of the SRNRA.
Section 292.64, Plan of Operations
Proposed Sec. 292.64 establishes the procedures by which a plan of
operation for mineral operations on mining claims in the SRNRA would be
processed.
Proposed Sec. 292.64(a) explains that the first item considered by
the authorized officer, except when the plan is for limited mineral
operations for purposes described in Sec. 292.62(b), is whether the
plan contains sufficient information for the Forest Service's review of
the operator's claim that valid existing rights are present. For
reasons of efficiency, it is logical for the authorized officer to
first determine whether valid existing rights are present before
reviewing that part of the plan which describes how the operator
proposes to develop the mineral deposit. The proposed rule specifies
that within 120 days of the submission of a plan of operations, the
authorized officer must notify the operator in writing whether
[[Page 47171]]
the information provided was sufficient for the Forest Service's review
of the operator's claim that valid existing rights are present. If the
authorized officer concludes that additional information from the
operator is necessary to review the operator's claim that valid
existing rights are present, he or she shall inform the operator of
what information needs to be provided. Upon the submission of all such
information, the authorized officer shall promptly notify the operator
in writing of the anticipated date of completion of the valid existing
rights determination, which shall not be more than two years from the
date of the notice. If the operator fails to provide sufficient
information for the Forest Service's review of the operator's claim
that valid existing rights are present, the Forest Service has no
obligation to evaluate whether the operator has valid existing rights
or to process the operator's proposed plan of operations.
An on-the-ground examination and written report by a certified
mineral examiner is required for the agency to make a determination of
valid existing rights for unpatented mining claims located within the
SRNRA. The field examination and report may often take as much as two
years to complete, due to such factors as the weather, accessibility of
field sites, the availability of qualified personnel, preparation of
environmental documents for sampling, and research and analysis.
The season for conducting field work in the SRNRA in order to
determine valid existing rights is limited to approximately five
months, May through September, due to the weather. This area annually
receives about 80-90 inches of rain, predominantly from October through
April. Back country roads and trails to mining claims may become
impassable, and rain swollen rivers and streams cannot be safely
sampled for gold placer deposits until the waters recede in the spring.
During the winter, the agency determines the schedule for field
examinations of mining claims; therefore, mining plans of operations
that are submitted to the Forest Service during the spring or summer
months cannot be scheduled until the following winter.
The scheduling of mining claim examinations is also greatly
affected by the availability of certified review mineral examiners and
mineral examiners. Forest Service manual direction on locatable
minerals (FSM 2803) requires that only Forest Service certified review
mineral examiners and mineral examiners conduct examinations involving
mining claim validity and valid existing rights determinations. There
are fifty-five (55) certified review mineral examiners and mineral
examiners nationwide, but only five (5) in the Pacific Southwest Region
of the Forest Service where the SRNRA is located. Generally, a
certified mineral examiner schedules a field examination for a case
involving validity with one year advance notice. Complex and/or large-
scale mining cases may require two or more mineral examiners working
together to complete the project. Therefore, the on-the-ground
examination of a mining claim that is required for determination of
valid existing rights may have to be scheduled to take place the
calendar year following the submission of a plan of operations.
Field examination also may have to be preceded by a review of the
environmental impacts associated with the field activity pursuant to
the National Environmental Policy Act. Environmental impacts needs to
be assessed whenever fieldwork entails trenching or some other form of
excavation to prepare the site for sampling that might result in a
disturbance of surface resources. The timeframes for conducting such a
review would typically depend on a number of factors including, among
other things, the magnitude and type of the proposed sampling, the
location and accessibility of the site, other scheduled field
examinations, and budgetary and staff constraints. Generally, however,
a field examination would be scheduled sometime during the field season
of the year after the plan of operations is submitted.
There are only two Certified Review Mineral Examiners in the
Pacific Southwest Region. After the field examination is complete, the
Forest Service must analyze the data collected and prepare a written
report. The analysis typically involves estimating the quantity and
quality of the minerals in the deposit, compiling market data,
calculating development and production costs (including reclamation and
environmental mitigation costs), and preparing discounted cash flow or
similar analyses. Additional time may be needed to prepare maps and
exhibits and to present the data and findings in a written report that
must be approved by a certified review mineral examiner. The report
preparation can take several months, depending upon the complexity of
the case.
Proposed Sec. 292.64(a) also would permit the authorized officer,
upon a finding of good cause, to notify the operator in writing that an
extension of time will be necessary to complete the valid existing
rights determination. Situations which might warrant an extension
include, but are not limited to: (1) Inaccessibility of the mining
claims for a substantial part of a field season from May through
September due to fire, flooding, landslides, or other natural
conditions; (2) unavailability of specialists needed to conduct a
mineral examination or prepare a mineral report due to other non-
discretionary duties or medical leave; and (3) significant delays in
performing surface disturbing activities on the mining claim required
for the mineral examination in order to comply with environmental
statutes and regulations.
Proposed Sec. 292.64(b) explains that if the authorized officer
determines that valid existing rights are not present, that officer
must notify the operator of the determination, the reasons for the
determination, that the development activities as stated in the plan of
operations cannot be conducted, and that the Forest Service will
transmit its mineral report to the Bureau of Land Management (BLM) in
the United States Department of the Interior for review along with a
request that the BLM initiate a mineral contest action against the
pertinent mining claims. This is consistent with long-standing agency
practice.
Proposed Sec. 292.64(c) provides that determinations by the
authorized officer that valid existing rights are not present will be
regarded as final agency action not subject to further review or
administrative appeal. This is also consistent with long-standing
agency practice that adverse determinations referred to the Bureau of
Land Management are not decisions subject to appeal since the BLM
retains the statutory authority to make the final determination.
Proposed Sec. 292.64(d) explains that if the authorized officer
determines that valid existing rights are present, then the officer
will notify the operator of the determination and that the review of
the operational details of the plan will proceed. The authorized
officer may, if he or she desires, inform the operator of the estimated
time he or she thinks will be necessary to complete the evaluation of
the plan of operations. Although the agency is committed to processing
the plan of operations as expeditiously as possible, there are two
reasons the proposed rule does not specify the time by which the review
will be completed.
First, the time to complete the review of a plan of operations will
vary dramatically from case to case depending upon the scope of the
mining activity contemplated by the operator and the legal requirements
with which the Forest Service must comply in
[[Page 47172]]
conducting the review. The review of some proposals for small-scale
mining activities that will have a de minimis effect on SRNRA lands and
resources could be completed in a few weeks. The review of proposals
for large-scale mining operations which would have substantial effects
on SRNRA lands and resources, on the other hand, may take a few years
to complete. This disparity is based primarily on the legal
requirements associated with agency evaluation of proposed actions
which could have a major environmental impact. Specifically, compliance
with the requirements of the National Environmental Policy Act (NEPA),
the Endangered Species Act (ESA), and the National Historic
Preservation Act (NHPA), among others, can frequently take several
years.
In most instances, a review of large-scale mining operations in the
SRNRA would necessarily entail the preparation of an environmental
impact statement (EIS) pursuant to NEPA, consultation with the National
Marine Fisheries Service and/or the United States Fish and Wildlife
Service regarding the effect of the proposed operation on threatened
and endangered species pursuant to the ESA, and consultation with the
Advisory Council on Historic Preservation regarding the effect of the
activity on sites included in the National Register of Historic Places
pursaunt to the NHPA. Thus, given the extreme variability in the time
it will take to complete its review, the Forest Service has concluded
that it would be inappropriate to establish in this rule a ``one size
fits all'' timeframe for reviewing plans of operations irrespective of
the type of mining operation proposed or the potential impact the
activity might have on SRNRA lands and resources.
Second, as noted above, where large-scale mining operations are
contemplated, the Forest Service is legally required to consult with
several other federal agencies as part of its review of the plan of
operations. Although these other agencies share the Forest Service's
desire to fulfill their obligations as quickly and efficiently as
possible, the Forest Service recognizes that it has no control over how
these other agencies determine their priorities and allocate their
resources. Thus, it is deemed inappropriate for the Forest Service to
establish a definite time for completing its review of a plan of
operations since completing this task depends, at least in part, on
input from, and consultations with, other agencies that are beyond the
purview of this regulation and outside the Department of Agriculture.
Proposed Sec. 292.64(e) states that after the minimum informational
requirements concerning the operational part of the plan of operations
has been submitted, the authorized officer shall notify the operator in
writing at the conclusion of the review whether the plan has been
approved or disapproved. These information requirements are necessary
for the authorized officer to adequately evaluate the operational
portion of the proposed plan of operations.
Proposed Sec. 292.64(f) would require the authorized officer to
explain the basis for a decision not to approve the plan of operations.
It is current agency policy for the agency to notify the operator
whether the proposed plan of operations is approved or not, and if not,
a written explanation why it can not be approved.
Proposed Sec. 292.64(g) would require the authorized officer to
establish the time period for which a plan of operations would be
approved. The time period would be determined on a case-by-case basis
but would be based upon the minimum amount of time that would be
reasonably necessary to complete the activities set forth in the plan
of operations.
Proposed Sec. 292.64(h) is a provision that would enable the
authorized officer to review and modify a previously approved plan of
operations under a strictly limited set of circumstances. For example,
a modification may be necessary to bring a previously approved plan of
operations into conformance with applicable law and regulation. Or, a
modification may be necessary to address new information such as the
listing of a new species as threatened or endangered which was not
listed the time the plan was approved.
Proposed Sec. 292.64(i) explains that substantive changes to an
already approved plan of operations proposed by the operator 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 292.65, Plan of Operations Suspension
Proposed Sec. 292.65 authorizes the authorized officer to suspend
operations under an approved plan of operations, 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 mineral operation is not in compliance with the
laws, regulations, or the approved plan of operations; specify what the
operator has to do to come into compliance; and specify a reasonable
time period to abate the noncompliance. Generally, the operator will
have at least 30 days from the date of the notice 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. The immediate suspension procedures would allow the authorized
officer to take steps to avoid or minimize the risk of harm to persons
and the environment. Under the immediate suspension procedures, the
authorized officer would be required to notify the operator of the
suspension and provide an opportunity for response only after the harm
or risk of harm has been abated.
Section 292.66, Operating Plan Requirements
Proposed Sec. 292.66 establishes that operating plans are required
for 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. 292.66(a) specifies that all individuals who want to
exercise outstanding mineral rights in the SRNRA must submit an
operating plan to the authorized officer.
Proposed Sec. 292.66(b) specifies the information that an operator
must provide in order to conduct mineral operations involving
outstanding mineral rights where the surface estate is National Forest
System land within the SRNRA. The operating plan must include specific
information, such as: (1) The name and legal mailing address of the
operator, owner, and any lessees, assigns, and designees; (2) evidence
of ownership of the outstanding mineral rights; (3) sketches or maps
showing the location of the outstanding mineral rights, the proposed
area of operations, and the location and size of areas to be disturbed,
including existing or proposed structures, facilities and other
improvements; (4) a description of the type of operations including a
schedule for construction and drilling; (5) identification of the
hazardous materials
[[Page 47173]]
and any other toxic materials to be used during the operation and the
proposed means for disposing of such substances; (6) identification of
the character and composition of the mineral wastes that will be used
or generated and a proposed method or strategy for their handling; and
(7) a reclamation plan to reduce or control on-site and off-site damage
to natural resources resulting from mineral operations, including
descriptions of how public health and safety would be maintained and
how the area of surface disturbance would be reclaimed. The information
required in Sec. 292.66(c) (1) and (2) is needed in order for the
authorized officer to determine that the individuals or entities
proposing the operations hold the mineral rights. The information
required in Sec. 292.66(c)(3) is needed in order for the authorized
officer to determine that the proposed operations would occur on the
mineral estate, as well as what uses off the mineral estate would
require additional authorizations. The information required in
Sec. 292.66(c) (4) through (7) is needed for the same reasons set forth
in the discussion at proposed Sec. 292.63(c) (1) through (3), namely to
protect the land and resources of the SRNRA from unnecessary
environmental damage, protecting humans and wildlife from unnecessary
or dangerous risk from exposure to hazardous or toxic substance, as
well as ensuring that reclamation would return the surface to a
condition or use that is consistent with the Six Rivers National Forest
Land and Resource Management Plan.
Section 292.67, Operating Plan Approval
Proposed Sec. 292.67 establishes the procedures by which operating
plans for outstanding mineral rights in the SRNRA would be processed.
The requirements of the proposed section reflect long-standing agency
administrative practice.
Proposed Sec. 292.67(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
necessary 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 authorized officer
must specify what is needed. If sufficient information has been
submitted, the authorized officer would notify the operator in writing
of the anticipated date that the review would be completed. Before an
operator is allowed to conduct mineral operations in withdrawn lands,
the agency must determine that the operator has a legal right to
conduct the proposed activity. This process has been used by the agency
for many years.
Proposed Sec. 292.67(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. This is the standard operating
procedure used by the agency for many years.
Proposed Sec. 292.67(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 and that
the Forest Service would begin a review of the proposed operating plan.
For the same reasons as set forth in the discussion at proposed
Sec. 292.67(c) with respect to plans of operations, the proposed rule
does not include a time period by which the Forest Service must
complete the review of operating plans involving outstanding minerals
rights. Since the time to review operating plans may vary greatly
depending on the scope of the proposed mining activity, and since other
agencies besides the Forest Service may have a role to play in the
review process, the agency did not think it was appropriate to include
a provision requiring the completion of the review by a date certain.
Again, however, the agency is committed to doing everything within its
authority to process operating plans as quickly as possible subject, of
course, to the legal requirements with which it must comply.
Proposed Sec. 292.67(d) explains that the authorized officer shall
focus the review of the operating plan on whether the proposed
development activities are consistent with the rights granted by the
deed and with this provisions specified in the Six Rivers National
Forest Land and Resource Management plan and whether the development
activities will utilize the least amount of surface lands necessary for
the operations.
Proposed Sec. 292.67(e) would specify that upon completion of the
review of the operating plan, the authorized officer would notify the
operator of the authorized officer's findings. If the findings indicate
that the proposed operating plan is consistent with the rights granted
by the deed of conveyance, consistent with the Six Rivers National
Forest Land and Resource Management Plan, and uses only that portion of
the surface that is absolutely necessary, the operating plan would be
approved by the Forest Service. If the findings indicate that the
proposed operating plan does not meet one or more of these three
criteria, the authorized officer must explain how the proposed
operating plan is inconsistent with one or more of the three criteria
and negotiate proposed changes with the operator. This is a long-
standing procedure used by the agency to determine whether or not the
operator has a legal right to conduct the proposed minerals activity on
the private land. The intended affect is to ensure that the rights of
the private land owner and the Forest Service are considered in the
decisionmaking process.
Proposed Sec. 292.67(f) would require that another operating plan
be submitted if additional operations, not already included in an
approved operating plan, are proposed and that the process as outlined
in Sec. 292.67(d) would be followed. This provision is similar to
provisions in 36 CFR 228.5(c) and 292.64(i) of the proposed rule. By
requiring similar information and review of operations for outstanding
mineral rights as required for locatable minerals, the Forest Service
can ensure that the values for which the SRNRA was established are
protected. Also, operators can be assured that requirements for
modifications to an operating plan are consistent with requirements of
other mineral activities, and thus compatible with direction in the
forest plan.
Section 292.68, Mineral Material Operations
Proposed Sec. 292.68 provides that disposals of mineral materials
would continue to be governed by the existing mineral material
regulations set forth at 36 CFR part 228, subpart C, but that any
disposals made after the establishment of the SRNRA would be approved
only if the material is not within a designated wilderness area and is
to be used for construction and maintenance of roads and other
facilities within the SRNRA or in one of the four excluded areas
identified by the Act.
Section 292.69, Reclamation
Proposed Sec. 292.69 states that when it is practicable,
reclamation activities will be conducted concurrently for all mineral
operations in the SRNRA. Reclamation was previously addressed under the
plan of operations supplementary requirements, but now is proposed as a
separate section to make it clear that concurrent reclamation is
applicable to all mineral operations and that, in contrast to most
operations, concurrent reclamation is not just an option for
consideration, but is a normal operating procedure in the NRA. This
requirement is consistent with the
[[Page 47174]]
special protection that Congress intended for the area.
Section 292.70, Indemnification
This section would provide a means of protecting the United States
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 incurred by the Forest Service or
other agencies resulting from noncompliance with an approved plan of
operations or an approved operating plan.
Operators have not had to bear any of the costs incurred by the
Forest Service to administer mineral operations on National Forest
System lands even if operations were not being conducted under the
approved conditions. Proposed Sec. 292.70(c) would require those
operators who do not abide by the conditions of an approved plan of
operations or operating plan to pay the costs incurred by the Forest
Service resulting from noncompliance. Congress has specifically allowed
for mineral activities in this special area. This cost provision is a
monetary incentive to help ensure that operators who have the legal
right to conduct mineral operations in the NRA abide by the
requirements approved for their operation.
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
proposed 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, or State and local governments.
This proposed rule will not interfere with an action taken or planned
by another agency and it will not raise new legal or policy issues.
Finally, this action will not alter the budgetary impact of
entitlements, grants, user fees, 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
The Forest Service has reviewed the environmental assessment (EA)
that was prepared for the SRNRA supplementary mining regulations
previously published on April 3, 1996, and determined that no
additional analysis is necessary for this rulemaking because the
proposed changes to the rule will have no effect on the quality of the
human environment. A copy of the EA is available upon request by
calling the contact listed earlier in this rulemaking under FOR FURTHER
INFORMATION CONTACT.
Controlling Paperwork Burdens on the Public
Section 292.63(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. 292.66(b) requires those who wish to exercise outstanding
mineral rights to submit an operating plan. The Office of Management
and Budget approved the information collection, titled 36 CFR part 292,
subpart G--Smith River National Recreation Area, prior to publication
of the final SRNRA supplementary regulations in the Federal Register on
April 3, 1966, and assigned OMB Approval No. 0596-0138. That approval
remains in effect.
Section 292.63 (c)(1)--(c)(3) of this proposed rule specifies that
in addition to the requirements of Secs. 228.4 and 228.8, an operator
must provide information identifying hazardous and toxic materials and
similar chemical substances to be used during the mineral operations
and how they will be disposed of; the character and composition of
mineral wastes that will be used or generated and the proposed method
or strategy for handling those wastes; and how public health and safety
will be maintained. This information requirement was not part of the
final supplementary SRNRA rule published in the Federal Register on
April 3, 1996, and is not covered under other approved information
requirements. Therefore, 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 modifying its description of OMB No. 0596-
0138 and requesting Office of Management and Budget review and approval
of the information that would be required by Sec. 292.63 (c)(1)--
(c)(3).
Although Secs. 292.63 (c)(1)--(c)(3) of the proposed rule requires
the operator to submit more information with a plan of operations than
is required by part 228, subpart A, this is information that the
operator needs to provide in order to conduct the mineral operations.
Therefore, these provisions will require little additional effort by
the operator. 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 the use and disposal of hazardous materials,
the nature and handling of the mineral waters, and maintenance of
public health and safety. Respondents are operators planning mining
operations on federal land in the SRNRA. An estimated 2 respondents
respond each year, resulting in an estimated total annual burden of 4
hours. Reviewers who wish to comment on these information requirements
should submit their views to 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, a Takings Implication Assessment (TIA) of this proposed rule
has been prepared and considered in determining whether to proceed with
the proposed rule as currently drafted. The TIA concluded that the
agency action of publishing a proposed rule for public notice and
comment did not present a risk of a taking.
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
which the President signed into law on March 22, 1995, the Department
has assessed the effects of this rule on State, local, and tribal
governments and the private sector. This rule does not compel the
expenditure of $100 million or more by any State, local, or tribal
governments or anyone in the private sector. Therefore, a statement
under section 202 of the Act is not required.
Civil Justice Reform Act
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. If this proposed rule is adopted, (1) all State
and local laws and regulations that are in conflict with this
[[Page 47175]]
proposed rule or which would impede its full implementation would be
preempted; (2) no retroactive effect would be given to his 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 procedures, 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 of scope.
292.61 Definitions.
292.62 Valid existing right.
Locatable Minerals
292.63 Plan of operations supplementary requirements.
292.64 Plan of operations approval.
292.65 Plan of operations suspension.
Outstanding Mineral Rights
292.66 Operating plan requirements--outstanding mineral rights.
292.67 Operating plan approval--outstanding mineral rights.
Mineral Materials
292.68 Mineral material operations.
Other Provisions
292.69 Concurrent Reclamation.
292.70 Indemnification.
Subpart G--Smith River National Recreation Area
Authority: 16 U.S.C. 460bbb et seq.
292.60 Purpose and scope.
(a) Purpose. The regulations of this subpart set forth the rules
and 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.
(3) 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. The authorized officer may
permit operations conducted pursuant to:
(1) An operating plan or a plan of operations that was approved
prior to the effective date of these regulations to continue under the
specified conditions of approval or issuance, provided that valid
existing rights to extract the minerals are present or the operations
are for the purposes specified in Sec. 292.62(b), provided further that
the authorized officer requires modification of such operations:
(i) To bring the plan into conformance with changes in applicable
federal law or regulation;
(ii) To respond to new information not available at the time the
authorized officer approved the plan; for example, new listings of
threatened or endangered species; or
(iii) To correct errors or omissions made at the time the plan was
approved; for example, to ensure compliance with applicable federal law
or regulation.
(2) A permit or contract for the disposal of mineral materials
which was issued prior to the effective date of these regulations to
continue under the specified conditions of issuance, provided that the
authorized officer requires the modification of such operations:
(i) To bring the plan into conformance with changes in applicable
federal law or regulations;
(ii) To respond to new information not available at the time the
authorized officer approved the plan; for example, new listings of
threatened or endangered species; or
(iii) To correct errors or omissions made at the time the plan was
approved; for example, to ensure compliance with applicable federal law
or regulation.
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 material means any hazardous substance, pollutant,
contaminant, hazardous waste, and oil or other petroleum products, as
those terms are defined under any Federal, State, or local law or
regulation.
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.
Sec. 292.62 Valid existing rights.
(a) Definition. For the purposes of this subpart, valid existing
rights are defined as follows:
(1) For certain ``Wild'' River segments. The rights associated with
all mining claims on National Forest System lands within the SRNRA in
``wild'' segments of the Wild and Scenic Smith River, Middle Fork Smith
River, North Fork Smith River, Siskiyou Fork Smith River, and South
Fork Smith River, and their designated tributaries, except Peridotite
Creek and the lower 2.5 miles of Myrtle Creek, which:
(i) Were properly located prior to January 19, 1981;
(ii) Were properly maintained thereafter under the applicable law;
(iii) Were supported by a discovery of a valuable mineral deposit
within the meaning of the United States mining laws prior to January
19, 1981, which discovery has been continuously maintained since that
date; and
(iv) Continue to be valid;
(2) For Siskiyou Wilderness. The rights associated with all mining
claims on National Forest System lands within the SRNRA in the Siskiyou
Wilderness except, those within the Gasquet-Orleans Corridor addition
or those rights covered by paragraph (a)(1) of this section which:
(i) Were properly located prior to September 26, 1984;
(ii) Were properly maintained thereafter under the applicable law;
(iii) Were supported by a discovery of a valuable mineral deposit
within the meaning of the United States mining laws prior to September
26, 1984, which discovery has been continuously maintained since that
date; and
(iv) Continue to be valid;
(3) For all other lands. The rights associated with all mining
claims on National Forest System lands in that portion of the SRNRA not
covered by paragraph (a) (1) or (2) of this section which:
(i) Were properly located prior to November 16, 1990;
(ii) Were properly maintained thereafter under the applicable law;
(iii) Were supported by a discovery of a valuable mineral deposit
within the
[[Page 47176]]
meaning of the United States mining laws prior to November 16, 1990,
which discovery has been continuously maintained since that date; and
(iv) Continue to be valid;
(b) Limited operations to confirm discovery. Upon receipt of a
proposed plan of operations as defined in Sec. 292.63 and of sufficient
information from the operator to show an exposure of valuable minerals
on a claim that predates the withdrawal of the federal land from the
operation of the Untied States mining laws, the authorized officer may
authorize limited mineral operations for the purpose of gathering
information to confirm or otherwise demonstrate the discovery of a
valuable mineral deposit consistent with the definition in paragraph
(a) of this section or to obtain evidence for a contest hearing
regarding the claim's validity. Such authorization shall be limited in
scope and duration so as to authorize only those operations that may be
necessary to confirm or demonstrate the discovery of a valuable mineral
deposit prior to the date of withdrawal of the federal land on which
the claim is situated. Pursuant to this paragraph, the authorized
officer shall not authorize any operations which would constitute
prospecting, exploration, or otherwise uncovering or discovering a
valuable mineral deposit.
Locatable Minerals
Sec. 292.63 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 motorized equipment, including a suction dredge
and/or sluice.
(b) Information to support valid existing rights. A proposed plan
of operations within the SRNRA must include at least the following
information on the existence of valid existing rights.
(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 affidavits of assessment work or notices 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
or maintenance 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) An identification of the valuable mineral that has been
discovered;
(7) An identification of the site within the claims where the
deposit has been discovered and exposed;
(8) 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
(9) Evidence of past and present sales of the valuable mineral.
(c) Minimum information on proposed operations. In addition to the
requirements of paragraph (b) of this section, 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
requirements of 36 CFR 228.8 which includes reclamation. In addition, a
plan of operations also must include the following:
(1) An identification of the hazardous materials and any other
toxic materials, petroleum products, insecticides, pesticides, and
herbicides that will be used during the mineral operation, and the
proposed means for disposing of such substances;
(2) An identification of the character and composition of the
mineral wastes that will be used or generated and a proposed method or
strategy for their placement, control, isolation, or removal; and
(3) An identification of how public health and safety are to be
maintained.
Sec. 292.64 Plan of operations approval.
(a) Timeframe for review. Except as provided in paragraph (b) of
Sec. 292.62, 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 within one hundred and twenty (120)
days of one of the following situations:
(1) That sufficient information on valid existing rights has been
provided and the anticipated date by which the valid existing rights
determination will be completed, which shall not be more than two (2)
years after the date of notification; unless the authorized officer,
upon finding of good cause with written notice and explanation to the
operator, extends the time period for completion of the valid existing
rights determination.
(2) That the operator has failed to provide sufficient information
to review a claim of valid existing rights and, therefore, the
authorized officer has no obligation to evaluate whether the operator
has valid existing rights or to process the operator's proposed plan of
operations.
(b) If the authorized officer concludes that there is not
sufficient evidence of valid existing rights, he or she shall so notify
the operator in writing. In the notice, the authorized officer shall
set forth the reasons for the determination, inform the operator that
the proposed mineral operation cannot be conducted, and advise the
operator that the Forest Service will promptly notify the Bureau of
Land Management of its determination and request the initiation of a
mineral contest action against the pertinent mining claims.
(c) An authorized officer's decision pursuant to paragraph (b) that
there is not sufficient evidence of valid existing rights is a final
agency action not subject to further agency or Department of
Agriculture review or administrative appeal.
(d) If the authorized officer concludes that there is sufficient
evidence of valid existing rights, he or she shall so notify the
operator in writing the review of the remainder of the proposed plan
will proceed.
(e) 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 been addressed and, pursuant to Sec. 228.5(a) of
the chapter, notify the operator in writing whether or not the plan of
operations is approved.
(f) If the plan of operations is not approved, the authorized
officer shall explain in writing why the plan of operations can not be
approved.
(g) If the plan of operations is approved, the authorized officer
shall establish a time period for the proposed operations which shall
be for the minimum amount of time reasonably necessary for a prudent
operator to complete the mineral development activities covered by the
approved plan of operations.
(h) An approved plan of operations is subject to review and
modification as follows:
(1) to bring the plan into conformance with changes in applicable
federal law or regulation;
(2) To respond to new information not available at the time the
authorized
[[Page 47177]]
officer approved the plan; for example, new listings of threatened or
endangered species; or
(3) To correct errors or omissions made at the time the plan was
approved; for example, to ensure compliance with applicable federal law
or regulation.
(i) If an operator desires to conduct operations that differ in
type, scope, or duration from those in an approved plan of operations,
and if 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 of the plan for review and approval
by the authorized officer pursuant to Sec. 292.64 of this part.
Sec. 292.65 Plan of operations suspension.
(a) 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.
(1) 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.
(2) Otherwise, 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.
(b) Except as otherwise provided in this section, the authorized
officer shall notify the operator not less than 30 days prior to the
date of the proposed suspension.
Outstanding Mineral Rights
Sec. 292.66 Operating plan requirements--outstanding mineral rights.
(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.
(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 materials and any other
toxic materials, petroleum products, insecticides, pesticides, and
herbicides that will be used during the mineral operation, and the
proposed 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 proposed method or
strategy for their placement, control, isolation, remediation, or
removal; and
(7) A reclamation plan to reduce or control on-site and off-site
damage to natural resources resulting from mineral operations. The plan
must:
(i) Provide reclamation to the extent practicable;
(ii) Show how public health and safety are maintained;
(iii) Identify and describe reclamation measures to include, but
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.
(iv) Demonstrate how the area of surface disturbance will be
reclaimed to a condition or use that is consistent with the Six Rivers
National Forest Land and Resource Management Plan.
Sec. 292.67 Operating plan approval--outstanding mineral rights.
(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 that:
(1) sufficient information on ownership of the outstanding mineral
rights has been provided; or
(2) sufficient information on ownership of outstanding mineral
rights has not been provided, including an explanation of the specific
information that still needs to be provided, and that no further action
on the plan of operations will be taken until the authorized officer's
receipt of the specified information.
(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, explain the
reasons for such a finding, and that the proposed mineral operation
cannot be conducted.
(c) If the review shows that outstanding mineral rights have been
verified, the authorized officer must notify the operator in writing
that outstanding mineral rights have been verified and that review of
the proposed operating plan will proceed.
(d) The authorized officer shall review 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 Six Rivers National
Forest Land and Resource 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 of one of the
following:
(1) The operating plan meets all of the criteria of paragraphs
(d)(1) through (d)(3) of this section and, therefore, is approved;
(2) The operating plan does not meet one or more of the criteria in
paragraphs (d)(1) through (d)(3) of this section. Where feasible, the
authorized officer may indicate changes to the operating plan that
would satisfy the criteria in paragraphs (d)(1) through (d)(3) of this
section and, thus, if accepted by the operator, would result in
approval of the operating plan.
(f) To conduct mineral operations beyond those described in an
approved operating plan, the owner or lessee must submit, in writing,
an amended operating plan to the authorized officer at the earliest
practicable date. New operations covered by the proposed amendment may
not begin until the authorized officer has reviewed and responded in
writing to the proposed amendment. The authorized officer shall review
a proposed amendment of an approved operating plan to determine that
the criteria in paragraphs (d)(1) through (d)(3) of this section are
met.
[[Page 47178]]
Mineral Materials
Sec. 292.68 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 or the four excluded areas identified by the Act.
Other Provisions
Sec. 292.69 Concurrent reclamation.
Plans of operations involving locatable minerals, operating plans
involving outstanding mineral rights, and contracts or permits for
mineral materials should all provide, to the maximum extent
practicable, that reclamation proceed concurrently with the mineral
operation.
Indemnification
Sec. 292.70 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 the following:
(a) Costs, damages, claims, liabilities, judgments, injury and
loss, including those incurred from fire suppression efforts, and
environmental response actions and cleanup and abatement costs incurred
by the United States and arising from past, present, and future acts or
omissions of the owner, operator, or lessee in connection with the use
and occupancy of the unpatented mining claim and/or mineral operation.
This includes acts or omissions covered by Federal, State, and local
pollution control and environmental statutes and regulations.
(b) Payments made by the United States in satisfaction of claims,
demands or judgments for an injury, loss, damage, or costs, including
for fire suppression and environmental response action and cleanup and
abatement costs, which result from past, present, and future acts or
omissions of the owner, operator, or lessee in connection with the use
and occupancy of the unpatented mining claim and/or mineral operations.
(c) Costs incurred by the United States for any action resulting
from noncompliance with an approved plan of operations or activities
outside an approved operating plan. Such costs may include, but need
not be limited to, attorneys' fees and expenses.
Dated: September 2, 1997.
Robert Lewis, Jr.,
Acting Associate Chief.
[FR Doc. 97-23722 Filed 9-5-97; 8:45 am]
BILLING CODE 3410-11-M
