[Federal Register Volume 64, Number 33 (Friday, February 19, 1999)]
[Proposed Rules]
[Pages 8464-8476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4153]
[[Page 8463]]
_______________________________________________________________________
Part III
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Part 700, et al.
Indian and Federal Lands; Proposed Rule
Federal Register / Vol. 64, No. 33 / Friday, February 19, 1999 /
Proposed Rules
[[Page 8464]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 700, 740, 746 and 750
RIN 1029-AB83
Indian and Federal Lands
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is proposing to amend its regulations by clarifying the definition of
``Indian lands'' at 30 CFR 700.5 for purposes of the Surface Mining
Control and Reclamation Act of 1977 (SMCRA or the Act) and the
implementing regulations at 30 CFR Chapter VII. The proposed
clarification is required pursuant to a settlement agreement between
the Department of the Interior and the Navajo Nation and Hopi Indian
Tribe to settle the tribes' challenges to a 1989 rulemaking governing
coal leases and surface coal mining and reclamation operations on
Indian lands. OSM is also proposing various changes to the Federal
lands program at 30 CFR Parts 740 and 746, and the Indian lands program
at 30 CFR Part 750, in conjunction with the proposed clarification to
the definition of Indian lands.
DATES: Written comments: We will accept written comments on the
proposed rule until 5 p.m., Eastern time, on April 20, 1999.
Public hearings: Upon request, we will hold public hearings on the
proposed rule at dates, times and locations to be announced in the
Federal Register prior to the hearings. We will accept requests for
public hearings until 5 p.m., Eastern time, on March 12, 1999.
Individuals wishing to attend, but not testify, at any hearing should
contact the person identified under FOR FURTHER INFORMATION CONTACT
before the hearing date to verify that the hearing will be held.
ADDRESSES: If you wish to comment, you may submit your comments on this
proposed rule by any one of several methods. You may mail comments to
the Office of Surface Mining Reclamation and Enforcement,
Administrative Record, Room 101, 1951 Constitution Avenue, NW,
Washington, D.C. 20240. You may also comment via the Internet to OSM's
Administrative Record at: osmrules@osmre.gov.
You may submit a request for a public hearing orally or in writing
to the person and address specified under FOR FURTHER INFORMATION
CONTACT. The address, date and time for any public hearing held will be
announced prior to the hearings. Any individual who requires special
accommodation to attend a public hearing should also contact the person
listed under FOR FURTHER INFORMATION CONTACT.
FOR FURTHER INFORMATION CONTACT:
Ms. Suzanne Hudak, Office of Surface Mining Reclamation and
Enforcement, 1951 Constitution Avenue, NW, Washington, DC 20240;
Telephone (202) 208-2661. E-mail address: shudak@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. General Background on Proposed Rule
III. Discussion of Proposed Rule
A. Part 700: General.
1. Proposed Clarification of Definition of Indian Lands.
2. Basis and Purpose for Proposed Clarification of Definition.
3. Navajo Land Consolidation Area.
4. Surface and Mineral Ownership of Individual Indian Trust
Allotments Within the Navajo Land Consolidation Area.
5. Coal-Bearing Allotments Within the Off-Reservation Portion of
the Navajo Land Consolidation Area.
6. Surface Coal Mining Operations Within the Navajo Land
Consolidation Area.
7. SMCRA Regulation at the McKinley Mine.
8. Transfer of SMCRA Regulatory Jurisdiction.
9. Allocation of Abandoned Mine Land Fees and Title V Funding .
B. 30 CFR Parts 740 and 746: General Requirements for Surface
Coal Mining and Reclamation Operations on Federal ands; Review and
Approval of Mining Plans.
1. Section 740.1: Scope and purpose.
2. Section 740.4: Responsibilities.
3. Section 740.5: Definitions.
4. Section 740.11: Applicability.
5. Section 746.13: Decision document and recommendation on
mining plan.
C. 30 CFR Part 750: Requirements for Surface Coal Mining and
Reclamation Operations on Indian Lands.
1. Section 750.6: Responsibilities.
2. Section 750.12: Permit applications.
IV. Procedural Determinations.
I. Public Comment Procedures
Electronic or Written Comments
If you are submitting written comments on the proposed rule please
be specific, limit your comments to issues pertinent to the proposed
rule, and explain the reason for your recommendations. Except for
comments provided electronically, please submit three copies of your
comments, if possible, to our Administrative Record Room at the address
listed above (see ADDRESSES). All comments sent to the Administrative
Record Room will be logged into the administrative record for the
rulemaking. However, we will not consider or respond to your comments
when developing the final rule if they are received after the close of
the comment period (see DATES). We will make every attempt to log all
comments into the administrative record, but comments delivered to
addresses other than those listed in ADDRESSES may not be logged in.
Public Hearing
We will hold a public hearing on the proposed rule upon request
only. The time, date, and address for any hearing will be announced in
the Federal Register at least 7 days prior to the hearing.
Any person interested in participating at a hearing should inform
Ms. Hudak (see FOR FURTHER INFORMATION CONTACT), either orally or in
writing, of the desired hearing location by 5:00 p.m., Eastern time, on
March 12, 1999. If no one has contacted Ms. Hudak to express an
interest in participating in a hearing at a given location by that
date, a hearing will not be held. If only one person expresses an
interest, a public meeting rather than a hearing may be held, with the
results included in the Administrative Record.
If a hearing is held, it will continue until all persons wishing to
testify have been heard. The hearing will be transcribed. To assist the
transcriber and ensure an accurate record, we request that each person
who testifies at a hearing provide the transcriber with a written copy
of his or her testimony. To assist us in preparing appropriate
questions, we also request, if possible, that each person who plans to
testify submit to us at the address previously specified for the
submission of written comments (see ADDRESSES) an advance copy of his
or her testimony.
Please submit Internet comments as an ASCII file avoiding the use
of special characters and any form of encryption. Please also include
``Attn: RIN 1029-AB83'' and your name and return address in your
Internet message. If you do not receive a confirmation from the system
that we have received your Internet message, contact us directly at
202-208-2847.
We will make comments, including names and addresses of
respondents, available for public review during regular business hours.
Individual respondents may request confidentiality, which we will honor
to the extent allowable by law. If you wish to withhold your name or
address, except for the city or town, you must state this prominently
at the beginning of your comment. However, we will not
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consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.
II. General Background on Proposed Rule
The regulations proposed here are primarily intended to implement
one of the two rulemaking provisions set forth in the settlement
agreement entered into between the Department of the Interior (DOI or
the Department) and the Navajo Nation and Hopi Indian Tribe in April
1995. The agreement settled litigation stemming from tribal challenges
to final rules published on May 22, 1989 (54 FR 22182) that amended
OSM's regulations at 30 CFR Part 750 governing surface coal mining
regulatory requirements on Indian lands and the Bureau of Indian
Affairs' (BIA) regulations at 25 CFR Part 200 governing leases of coal
on Indian lands. The settlement was approved by the U.S. District Court
for the District of Columbia in June 1995. Hopi Indian Tribe v.
Babbitt, Nos. 89-2055, 89-2066 (D.D.C. June 20, 1995).
In their legal challenges to the 1989 rulemaking, the plaintiffs
complained, among other things, that the designation of OSM in the
final rule as the exclusive and sole regulatory authority over surface
coal mining operations on Indian lands violated section 710 (Indian
lands) of SMCRA. The tribes contended that the Secretary's refusal to
delegate surface coal mining regulatory authority to the tribes was
contrary to his fiduciary and trust obligations to the tribes.
Additionally, the Navajo Nation claimed that off-reservation trust
allotments are Indian lands subject to OSM regulation under SMCRA and
that the Secretary may not lawfully allow or delegate to the States any
permitting or regulatory authority under SMCRA on such lands.
The tribes also raised objections to BIA's regulations governing
coal leases on Indian lands, claiming that the Secretary must
incorporate SMCRA standards as terms and conditions in all such
existing leases. The Navajo Nation further asserted that the Secretary
must incorporate, at the tribe's request, other non-SMCRA terms and
conditions into such leases issued after SMCRA's enactment.
The Secretary, in the settlement agreement, maintained his position
that he presently lacks statutory authorization to delegate SMCRA
regulatory primacy to Indian tribes. He did, however, agree to consider
in good faith requests by the tribes to contract specific regulatory
functions, provided such requests are in compliance with the Indian
Self-Determination Act (25 U.S.C. 450 et seq.). The Secretary also
agreed that the Navajo Nation and the Hopi Tribe retain the inherent
sovereign authority to regulate surface coal mining operations on lands
within their jurisdiction, provided such regulation is consistent with
and at least as stringent as regulation under SMCRA, and does not
interfere or conflict with OSM's Federal program for Indian lands.
Under the terms of the settlement agreement, the Secretary agreed,
among other things, to propose a rule clarifying the definition of
Indian lands at 30 CFR 700.5 for purposes of SMCRA and the implementing
regulations. Specifically, the Secretary agreed to include in the
proposed definition ``all allotments held in trust by the Federal
government for an individual Indian or Indians, the Indian titles to
which have not been extinguished, including rights-of-way running
through such allotments, where such allotments are located within a
tribal land consolidation area approved by the Secretary or his
authorized representative under 25 U.S.C. 2203.'' The settlement
further provided that the proposed definition of Indian lands may
address other issues arising from section 701 of SMCRA.
The Secretary also agreed to propose rules to amend BIA's
regulations at 25 CFR 200.11 to require the inclusion of SMCRA
standards as terms and conditions in leases of coal on Indian lands.
BIA intends to prepare that rulemaking as a separate proposal that will
be published for public comment in a future Federal Register notice.
The Secretary further agreed that either or both of the plaintiffs
may challenge any rule promulgated pursuant to the settlement that
differs substantially from the terms set forth in the agreement. Any
party with standing may challenge such a rule under the Administrative
Procedure Act (5 U.S.C. 551, et seq.), and nothing in this notice or in
the settlement agreement predetermines the outcome of this rulemaking.
III. Discussion of Proposed Rule
A. Part 700: General
1. Proposed Clarification of Definition of Indian Lands
The term ``Indian lands'' is currently defined at 30 CFR 700.5 as:
all lands, including mineral interests, within the exterior
boundaries of any Federal Indian reservation, notwithstanding the
issuance of any patent, and including rights-of-way, and all lands
including mineral interests held in trust for or supervised by an
Indian tribe.
The regulatory definition at 30 CFR 700.5 mirrors the statutory
definition at section 701(9) of SMCRA. OSM is proposing to replace the
current definition of Indian lands with a revised version, which would
read as follows:
(a) All lands, including mineral interests, within the exterior
boundaries of any Federal Indian reservation, notwithstanding the
issuance of any patent or rights-of-way; and
(b) All lands including mineral interests held in trust for or
supervised by an Indian tribe. Such lands include, but are not
limited to, all allotments held in trust by the Federal government
for an individual Indian or Indians, the Indian titles to which have
not been extinguished, including rights-of-way running through such
allotments, where such allotments are located within a tribal land
consolidation area approved by the Secretary or his authorized
representative under 25 U.S.C. 2203.
OSM believes that the revised two-part definition would more
clearly distinguish between the two general types of lands that qualify
as Indian lands under SMCRA, namely all lands within Federal Indian
reservation boundaries and all lands held in trust for or supervised by
an Indian tribe. Pursuant to the settlement agreement, OSM is further
proposing to add clarifying rule language that Indian trust allotments
located within a tribal land consolidation area approved by the
Secretary fall within the category of lands held in trust for or
supervised by an Indian tribe and therefore qualify as Indian lands
under SMCRA.
2. Basis and Purpose for Proposed Clarification
There are several possible bases for determining that allotted
lands are ``Indian lands'' for purposes of SMCRA. Under the SMCRA
definition of ``Indian lands,'' one possible basis would be a
determination that a tribe supervises the lands. Another possible basis
would be a two-part determination: first, that Congress intended the
reference to lands ``supervised by'' an Indian tribe in the SMCRA
definition of ``Indian lands'' to include those lands encompassed by
the term ``Indian country;'' and second, a determination that allotted
lands are Indian country. OSM has taken the position that Congress
intended the phrase ``lands . . . supervised by'' an Indian tribe to
include lands encompassed by ``Indian country.'' Valencia Energy Co.,
109 IBLA 59 (1989). These possible bases are discussed in more detail
below.
Tribal Supervision
Counsel for the Navajo Nation has suggested that there are several
respects
[[Page 8466]]
in which the tribe supervises allotted lands outside the reservation in
the tribal land consolidation area. Examples of such tribal supervision
may include, but are not necessarily limited to, the exercise of
grazing supervision on allotted lands and tribal implementation of
certain Federal environmental statutory provisions on allotted lands.
The Navajo Nation has been approved for treatment as a state for
purposes of implementing the underground injection control program
under the Safe Drinking Water Act. That approval extends to all Navajo
allotted lands. EPA review is pending on a Navajo Nation application
for public water system supervision under the Safe Drinking Water Act.
The Navajo Nation may also assert authority to tax certain
activities on Navajo allotted lands. Counsel for the tribe has
suggested that Navajo authority to tax may support a conclusion that
the tribe supervises the allotted lands. OSM requests comments as to
whether, and in what specific respects, the Navajo Nation supervises
the Navajo allotments in the tribal land consolidation area.
Indian Country
In the Valencia case, which addressed whether certain lands were
Indian lands for purposes of SMCRA, OSM referred to the legislative
history of the Land Use Policy Planning and Assistance Act of 1973
(LUPA), another Federal bill considered by Congress at the same time
the definition of ``Indian lands'' was first included in SMCRA. LUPA
contained a similar definition of ``Indian lands''. OSM quoted from the
legislative history of LUPA, which stated that Congress intended the
phrase ``supervised by an Indian tribe'' to cover
lands which are Indian country for all practical purposes but which
do not enjoy reservation status. The Committee recognizes that
Indian tribal land use planning processes and programs would be
largely meaningless if the tribes could not control key tracts
within their reservations which they did not own or lands outside a
reservation which they own or for which they possessed
administrative responsibility.
S. Rep. No. 197, 93d Cong., 1st Sess. 127 (1973). OSM concluded in
that case that Congress must have intended the same term and almost
identical definition in SMCRA to have the same interpretation discussed
in the Committee report on LUPA. (Therefore, OSM concluded in Valencia
that lands owned by an Indian tribe are ``Indian lands'' within the
purview of the SMCRA definition at section 701(9)). The IBLA affirmed
OSM's analysis. 109 IBLA 60.
In a recent U.S. Supreme Court decision, Alaska v. Venetie, 118
S.Ct. 948 (1998), the court concluded that, for purposes of both
federal civil and criminal jurisdiction, ``Indian country'' means (a)
all land within the limits of any Indian reservation under the
jurisdiction of the United States Government . . . , (b) all dependent
Indian communities within the borders of the United States . . . , and
(c) all Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.'' 118
S.Ct. 948, 952 (citations omitted). See also 18 U.S.C. section 1151;
DeCoteau v. District County Court for Tenth Judicial District, 420 U.S.
425, 427, n. 2(1975).2. Under this standard, Indian allotments would be
``Indian country.'' And if Congress did intend ``Indian country'' to be
included in lands ``supervised by an Indian tribe,'' then allotments
would also be ``supervised by an Indian tribe,'' and therefore would be
included in the SMCRA definition of ``Indian lands.''
OSM notes that there was a challenge by the State of New Mexico to
the 1984 regulations establishing the Federal program for Indian lands
at 30 CFR Part 750. As one of the steps taken in settlement of that
litigation, OSM agreed to issue a clarification of the 1984 regulatory
preamble in which the Department disclaimed any assertion that all
individual allotments outside of the exterior boundaries of an Indian
reservation were ``Indian lands'' within the contemplation of SMCRA.
OSM has taken the position that whether or not any specific Indian
allotment is within the ``Indian lands'' definition of SMCRA depends on
whether the allotment can be deemed to be ``held in trust for or
supervised by an Indian tribe.'' See 53 FR 3993 (February 10, 1988);
109 IBLA 68, fn 5.
OSM requests comment as to these and any other specific bases for
determining that the allotted lands in the Navajo land consolidation
area are ``Indian lands'' for purposes of SMCRA.
3. Navajo Land Consolidation Area
Navajo Land Consolidation Plan
For purposes of this rulemaking, the tribal land consolidation area
cited in the settlement agreement and in this proposed rule refers to a
large expanse of land that was established by the Navajo Nation by
tribal resolution to provide the tribe with the additional authority to
consolidate and augment the Navajo land base in accordance with the
Indian Land Consolidation Act, 25 U.S.C. 2201 et seq. The area is
described in the Navajo Land Consolidation Plan that was adopted by the
Navajo Nation pursuant to Navajo Tribal Council Resolution No. CMY-23-
80 entitled ``Approving the Navajo Land Consolidation Act of 1988,'' as
amended by Resolution No. CO-43-88 entitled ``Approving Amendments to
the Navajo Land Consolidation Plan.'' The two resolutions, and
accompanying attachments and exhibits, were passed by the Navajo Tribal
Council on May 4 and October 25, 1988, respectively. The Navajo Land
Consolidation Plan was subsequently approved in January 1989 by the
BIA's Navajo Area Office in accordance with delegated authority from
the Secretary of the Interior.
As described in the approved consolidation plan, the land
acquisition and consolidation area ``includes all lands, including
federally administered and public domain lands, within: (1) the
boundaries of the Navajo Reservation; (2) Navajo `Indian country' as
defined by 18 U.S.C. Sec. 1151; (3) the aboriginal land area of the
Navajo Tribe of Indians, as established by the Indian Claims
Commission; (4) the counties of McKinley, San Juan, Sandoval, Cibola,
Bernalillo, Socorro, and Valencia in the State of New Mexico; and (5)
such other lands designated on the map attached hereto (to the
consolidation plan) as Figure `A'.'' The consolidation plan further
states that ``any land consolidation plans previously approved by the
Bureau of Indian Affairs for the satellite Reservations of Alamo,
Canoncito, and Ramah shall be deemed to be incorporated herein, and may
be amended by the Navajo Tribal Council or its duly authorized
Committee.''
Navajo Aboriginal Area and Indian Claims Commission Litigation
Figure A, the map referenced in the approved consolidation plan,
does not clearly delineate the outer boundary of the Navajo
consolidation area and therefore could not be readily used by OSM as a
basis for determining the location and extent of coal-bearing
allotments located within the approved area. Such a determination was
necessary in order for OSM to assess the potential geographic scope of
the proposed rule.
In lieu of Figure A, OSM requested from the Navajo Nation a more
precise depiction of the consolidation area. In response, the Navajo
Nation prepared and provided to OSM a detailed large-scale map dated
December 13, 1996, entitled ``Aboriginal Boundary of the Navajo Indian
Reservation.'' OSM then requested additional information and
clarification from the tribe concerning the history and origin of the
aboriginal
[[Page 8467]]
boundary depicted on the map because it is this boundary line which
largely defines the perimeter of the Navajo consolidation area. The
Navajo Nation responded with a letter dated July 14, 1997, providing
explanatory information concerning the aboriginal boundary and
enclosing a second map dated January 29, 1997.
The January 29 map provided by the Navajo Nation was prepared by
the Navajo Land Department and is, for the most part, identical to the
earlier December 13 map. It depicts land status and land ownership
information in the general vicinity of the Navajo consolidation area,
as well as the location of more than eighty Navajo sacred places. As
the Navajo Nation explained in its July 14 letter, both ``the Navajo
Land Consolidation Act map (Figure A) and the January 29 map are
derived from an original map that was created for litigation purposes
in Navajo Land Claims litigation in the 1950s.''
The litigation cited in the Navajo Nation's July 14 letter is a
reference to the tribe's aboriginal land claim that was filed with the
Indian Claims Commission on August 8, 1951. The commission was created
on August 13, 1946, by an act of Congress to hear and resolve claims
against the United States by any Indian tribe, band, or other
identifiable group of American Indians. Although originally established
for a ten-year period, the commission was subsequently granted a series
of extensions by Congress and continued to exist through September 30,
1978.
It should be noted that the January 29 Navajo Land Department map
depicts the aboriginal area recognized by the tribe, as well as a
smaller tract of land, designated on the map as the ``Navajo Title
Award Area,'' which represents the aboriginal area judicially
established by the Indian Claims Commission. In explaining the basis
for the larger area established by the tribe, the Navajo Nation's July
14 letter states that ``the aboriginal boundary line appears to connect
habitation sites of unknown Indians, which could be Navajo, but are not
prototypical Navajo structures, or are unknown but Indian structures,
or which are neither Anglo American or Spanish sites, as agreed by the
expert witnesses'' of the Navajo Nation, various other tribes, and the
Court of Claims. The tribe's letter goes on to describe the smaller
judicially established aboriginal area as consisting of ``a combination
of known Navajo prototypical habitation sites and sacred places joined
together by a line approved for settlement of litigation concerning
aboriginal land claims of the Navajo Nation in the Court of Claims in
Docket 229.'' Docket 229 is a reference to the docket number assigned
to the Navajo's claim before the Indian Claims Commission. The
relevance of these two aboriginal areas to the Navajo consolidation
area and to this rulemaking is explained below.
The Indian Claims Commission issued its Findings of Fact and
Opinion in the Navajo case on June 29, 1970. In ruling on the Navajo
claim, the Indian Claims Commission concluded, in pertinent part,
``that as of July 25, 1868, the effective date of the 1868 Navajo
Treaty of cession, the plaintiff held aboriginal title to those lands
described in Finding 17 herein (in the commission's Findings of Fact),
except for those areas contained within any Spanish or Mexican grants
or parts thereof falling within the boundaries of the lands so
described; that the plaintiff ceded the above described aboriginal
title lands to the United States under the 1868 Treaty, except for the
area specifically reserved to the plaintiff under Article 2 of said
Treaty; and that the plaintiff tribe did not have aboriginal title to
the balance of the lands in suit here.'' 23 Ind. Cl. Comm. 275 (1970).
Finding of Fact No. 17 sets forth a detailed metes and bounds
description of the area to which the Navajo Nation held aboriginal
title on July 25, 1868, as determined by the Indian Claims Commission.
This so-called adjudicated or judicially established area corresponds
to the ``Navajo Title Award Area'' depicted on the January 29 Navajo
Land Department map and is also the third item listed in the Navajo
Land Consolidation Plan. The perimeter of the adjudicated area, as
shown on that map, connects a series of fifteen points which correspond
to the various communities and geographic features cited in the
commission's metes and bounds description. As noted earlier, this area
is the smaller of the two aboriginal areas illustrated on the January
29 map.
Consolidation Area Lands Affected by the Proposed Rule
The Navajo land consolidation area is situated in northwestern New
Mexico, northeastern Arizona, southwestern Colorado and southeastern
Utah. The perimeter of the consolidation area consists of the outermost
boundary line that is formed by superimposing the larger aboriginal
area recognized by the Navajo Nation and the smaller adjudicated area
established by the Indian Claims Commission and then expanding that
line, as necessary, to fully encompass the seven New Mexico counties
that are cited as the fourth item in the Navajo Land Consolidation
Plan.
The consolidation area includes both Federal Indian reservation
lands and off-reservation lands. The Federal Indian reservation portion
of the consolidation area, for purposes of the Navajo Land
Consolidation Plan, consists of all lands within the boundaries of the
Navajo Indian Reservation and the satellite reservations of Alamo
Navajo, Canoncito, and Ramah Navajo. All lands within the boundaries of
Federal Indian reservations are Indian lands pursuant to SMCRA section
701(9) and the implementing regulation at 30 CFR 700.5; their
jurisdictional status, for purposes of SMCRA regulation, is not at
issue. Therefore, this proposed rulemaking relates exclusively to the
off-reservation portion of the Navajo consolidation area and, more
specifically, to individual Indian trust allotments situated within
that portion of the consolidation area.
A map of the consolidation area was prepared by OSM and BIA in the
course of developing this proposed rule. It duplicates on a smaller
scale the relevant data from the January 29 Navajo Land Department map,
including the boundaries of the two aboriginal areas depicted on that
map. It also illustrates major highways, cities and towns; the various
counties that are cited in the Navajo consolidation plan or are
otherwise referenced in this preamble; the location of Federal Indian
reservations and pueblos situated partially or completely within the
consolidation area; and the general location of the McKinley Mine, an
existing surface coal mine whose relevance to this rulemaking will be
discussed later in this preamble. Copies of the consolidation area map
are available, upon request, by contacting the person specified earlier
under FOR FURTHER INFORMATION CONTACT.
4. Surface and Mineral Ownership of Individual Indian Trust Allotments
Within the Navajo Land Consolidation Area
An individual Indian trust allotment, whether located within or
outside the exterior boundaries of a Federal Indian reservation, is
allotted to an individual member of an Indian tribe. Each of the trust
allotments located within the Navajo land consolidation area was
originally allotted to an individual member of the Navajo Nation, but
nearly all are now in multiple ownership because of inheritance. The
majority of the trust allotments consist of 160-acre parcels of land
(one-quarter of a 640-acre section), with some variations in size due
to survey corrections resulting from the curvature of the earth or for
[[Page 8468]]
reasons such as conformity to geographic features (e.g. rivers) or
governmental boundary lines. Additionally, a small number of allotments
may be either larger or smaller than 160 acres due to differences in
the statutory provisions governing the allotment process, or through
partition or sales by the Indian owners.
The surface rights to the Navajo trust allotments located within
the consolidation area are held by the Indian owners, while the coal,
oil and gas, and other mineral rights were generally reserved for the
Federal government at the time of allotment. Under the terms of the
settlement agreement approved on January 28, 1997, in Bertha Mescal v.
United States of America, No. CIV 83-1408 LH/WWD (D.N.M.), the Federal
government agreed to convey the reserved subsurface minerals underlying
Navajo allotments in New Mexico to the plaintiff allottee owners of the
surface rights. As defined in the settlement, the plaintiffs included
``all Navajo Indians who hold beneficial title to any interest in
allotment land in New Mexico where the allotment trust patent recites
that the United States has a reserved mineral interest * * *'' The
Mescal agreement settled a long-standing class action lawsuit in which
the plaintiff Navajo allottees sought a declaration of beneficial title
to minerals on or underlying the surface of their respective
allotments.
The McKinley Mine, an existing surface coal mine mentioned earlier
in this preamble, includes four Federal coal leases within its approved
permit area. The Mescal agreement contains certain provisions
concerning those leases and the overlying Navajo allotments.
Specifically, the agreement provides that the Bureau of Land Management
(BLM) will issue supplemental trust patents for the 46 McKinley
allotments (45 of which are presently included within the McKinley Mine
permit area) within six months of the expiration, relinquishment or
other termination of the ``Federal Leases'' and that, until such
patents are issued, the United States will retain ownership of the
reserved minerals. The Bureau of Land Management is the bureau within
the Department of the Interior responsible for, among other things, the
leasing and supervision of operations involving Federal onshore mineral
resources. The term ``Federal Leases'' includes the four McKinley coal
leases and certain Federal oil and gas leases.
The Mescal settlement further provides that the ``Federal Leases
will continue to be administered solely under federal regulations
applicable to mineral leases issued under the MLA (Mineral Leasing
Act)'' during the term of the leases. The Mineral Leasing Act of 1920,
as amended, is the Federal statute that largely governs the leasing and
development of certain Federal mineral resources, including coal and
onshore oil and gas. The relevance of these Mescal settlement
provisions to this rulemaking and to SMCRA regulation at the McKinley
Mine will be discussed somewhat later in this preamble.
(Mescal also provides that BLM will regulate certain potential
future Indian mineral leases, collectively referred to in the
agreement as the ``Settlement Leases,'' under the regulations
applicable to Federal mineral leases issued under the MLA. Those
leases would involve both coal, and oil and gas resources. As
specified in Mescal, any such Settlement Leases for Indian coal
could potentially involve up to a total of 28 individual Navajo
allotments. The Department has not yet determined the appropriate
measures for implementing the Mescal provisions concerning
Settlement Leases. Therefore, the regulation of any such leases in
light of Mescal is not addressed in this rulemaking.)
With respect to revenues generated by the McKinley coal leases, the
settlement provides that on and after July 1, 1998, and after approved
counsel fees are satisfied, 50% of monies received under the terms of
the McKinley leases will be distributed to the ``McKinley Fund'' for
distribution to the allottees holding beneficial interests in the
surface of the allotments. Prior to the Mescal agreement, the monies
allocated to the McKinley Fund would have been deposited in the U.S.
Treasury pursuant to Section 35 of the MLA (30 U.S.C. 191). (The other
50% of the revenues generated by the McKinley coal leases will continue
to be distributed to the State of New Mexico pursuant to Section 35 of
the MLA.) The McKinley Fund includes all settlement funds derived from
the McKinley coal leases and received by the Minerals Management
Service (MMS) after July 1, 1998. MMS is the Department of the Interior
bureau which, among other things, administers mineral revenues
generated from Federal and Indian lands.
5. Coal-Bearing Allotments Within the Off-Reservation Portion of the
Navajo Land Consolidation Area
The off-reservation portion of the Navajo land consolidation area
extends over parts of New Mexico, Arizona, Colorado and Utah. OSM and
BIA have jointly determined that, of those four States, only New Mexico
appears to contain coal-bearing Indian trust allotments. OSM and BIA
made this determination after a detailed review and analysis of the
available information on allotments and coal resources for the off-
reservation portion of the consolidation area. This information was
obtained from several sources and publications.
A computer-generated listing of some 3,640 Navajo allotments
located within the Navajo land consolidation area in New Mexico was
provided by BIA's Land Titles and Records Office in Albuquerque, New
Mexico. That office maintains the official land records and title
documents for Indian lands located under the jurisdiction of BIA's
Albuquerque, Navajo and Phoenix Area Offices. The allotment data that
was provided included the tract identification number for each
allotment, as well as township, range and section information.
OSM obtained coal resource data for part of the off-reservation
portion of the consolidation area from a 1971 publication entitled
Strippable Low-Sulfur Coal Resources of the San Juan Basin in New
Mexico and Colorado (New Mexico Bureau of Mines & Mineral Resources,
Memoir 25, 1971). The report was prepared by the New Mexico Bureau of
Mines & Mineral Resources, with the assistance of the U.S. Bureau of
Mines. As stated in the report summary, the study was conducted in
order ``to determine the amount, location, quality and economic
position of low-sulfur strippable coal in the San Juan Basin.'' The
report appears to be the most comprehensive evaluation, to date, of
known or potential coal resources within the basin, although the
study's authors acknowledge that ``reserve estimates range in
reliability from proven tonnages to speculation based on geologic
inferences.''
The New Mexico report classified coal reserves into two general
categories: those consisting of beds three or more feet thick beneath
10 to 150 feet of overburden, and those in beds five or more feet thick
beneath 150 to 250 feet of overburden. Of particular significance to
this rulemaking is a map included within the report entitled ``Fields
and Areas of Strippable Low Sulfur Coal in San Juan Basin.'' That map
depicts the boundaries of the various coal fields and coal areas
located within the basin, with each such coal-bearing unit identified
by name and relative stratigraphic position.
Coal resource data for the remainder of the off-reservation portion
of the consolidation area not covered in the New Mexico study was
obtained from a 1996 U.S. Geological Survey (USGS) map entitled ``Coal
Fields of the
[[Page 8469]]
Conterminous United States'' (U.S. Geological Survey Open-File Report
96-92). Unlike the New Mexico report, which evaluated and selectively
identified those areas within the San Juan Basin that could potentially
be surface mined, the USGS map depicts all of the locations where coal
is known to exist within the conterminous United States without regard
to actual mining potential.
Based on an analysis of the allotment and coal resource data
described above, OSM and BIA have jointly determined that some 1,895
Navajo allotments located within the Navajo land consolidation area lie
partially or completely over surface minable coal. This figure
represents 52% of the approximately 3,640 Navajo allotments that lie
within the consolidation area. OSM and BIA made this determination
using a variety of electronic mapping and Geographic Information System
software to create a composite map depicting the location of some 3,500
Navajo allotments relative to the coal fields and coal areas identified
in the New Mexico report. The 3,500 allotments that were electronically
plotted represent the subset of consolidation area allotments that fell
within a certain proximity (0 to 40 miles) to the coal-bearing areas. A
comparison of the allotment data with the 1996 USGS map indicated that
no allotted lands appear to be located within the vicinity of the
additional coal-bearing areas identified on that map. Copies of the map
depicting the location and distribution of coal-bearing Navajo
allotments located within the Navajo consolidation area are available,
upon request, from the person specified earlier under FOR FURTHER
INFORMATION CONTACT.
The vast majority of the coal-bearing allotments are located within
the borders of McKinley or San Juan Counties in New Mexico. All of the
coal-bearing allotments lie within the San Juan Basin which is
described in the New Mexico report as ``a major physiographic
subdivision of the Colorado Plateau in northwestern New Mexico and
southwestern Colorado'' containing three major coal-bearing zones. The
report describes the areas of strippable coal as lying ``along the
basin margins--mainly the western and southern--in roughly concentric
belts of outcrop of coal-bearing strata.''
As noted earlier, 45 individual Indian trust allotments in McKinley
County are already either partially or completely included within the
McKinley Mine permit area. There are currently no other surface coal
mining operations within the Navajo consolidation area that include
allotted lands within their existing permit boundaries. However, at
least one previous mining proposal submitted to the New Mexico
regulatory authority in the 1980's would have included a number of
individual Indian allotments in McKinley County within its proposed
permit area. A second proposed mine would have been immediately
adjacent to such lands on its southern and eastern permit boundaries.
The permit applications for those mines were subsequently withdrawn by
the applicants. Another proposed mine involved the construction of a
railroad corridor, a portion of which traverses a quarter section of
allotted land. Although the mining proposal was later withdrawn by the
applicant, the railroad corridor was completed in anticipation of
eventual mining in the area.
OSM and BIA did not attempt to determine the number of additional
allotments, if any, that overlie or intersect areas where the potential
for underground coal mining might reasonably exist. At this time, OSM
and BIA are unaware of any published data that evaluates the coal
resources of either the San Juan Basin or the Navajo consolidation area
in terms of underground mining potential. Furthermore, OSM believes
that speculation as to the likelihood, timing or extent of any future
surface or underground coal mining on allotted lands within the
consolidation area is beyond the scope of this rulemaking given the
many complex economic, environmental and other variables that
ultimately determine the feasibility of such mining proposals.
6. Surface Coal Mining Operations Within the Navajo Land Consolidation
Area
Presently, there are eight actively-producing surface coal mining
operations (one of which includes a separately permitted coal
preparation plant) situated within the Navajo land consolidation area.
(The term ``surface coal mining operations'' is defined in SMCRA
Sec. 701.28 to include specified aspects of both surface mining and
underground mining.) Of those eight active mines, five are in New
Mexico, two are in Arizona, and one is located in southwestern
Colorado. There are also eight mines which have terminated coal
production and are in various stages of reclamation. All of those mines
are located in New Mexico. In addition, two SMCRA permits have been
issued for a proposed surface coal mining operation that would lie in
western New Mexico and would supply coal via railroad to a generating
station in eastern Arizona. A State permit covers the mine and the New
Mexico portion of the railroad, while an OSM permit has been issued for
the Arizona portion of the railroad corridor. The State permit for that
mine is currently the subject of a court challenge. In addition, the
OSM permit is conditioned upon Federal approval of the mining plan for
Federal coal in New Mexico. That mining plan has yet to be approved.
None of the eight mines currently in reclamation, nor the proposed
mine, involve allotted lands. Of the eight active mining operations,
three mines (and the coal preparation plant associated with one of the
mines) lie entirely on Navajo and Hopi reservation lands in Arizona and
New Mexico, while three are located exclusively on off-reservation
lands (two mines in New Mexico and the mine in Colorado). The two
remaining mines, both in New Mexico, include reservation lands and off-
reservation lands. Of the five mines located partially or completely on
off-reservation lands, only the McKinley Mine in New Mexico contains
allotted lands within its approved permit boundaries. Hence, at this
time, McKinley is the only mine whose jurisdictional and regulatory
status would be affected by this proposed rule. SMCRA regulation at the
McKinley Mine, and how it would be affected by this proposed rule, is
discussed below.
7. SMCRA Regulation at the McKinley Mine
The McKinley Mine is an 18,692-acre active surface coal mining
operation owned and operated by the Pittsburg & Midway Coal Mining
Company (P&M). The mine straddles the boundary of the Navajo Indian
Reservation near the Arizona-New Mexico border. The portion of the
permit area that lies within the boundaries of the Navajo reservation,
as well as a parcel of adjacent off-reservation split-estate tribal fee
lands, comprises the Indian lands portion of the mine and is
collectively referred to as the ``North Area.'' The remainder of the
mine, the so-called ``South Area,'' includes off-reservation State,
private, Federal and allotted lands, all of which are presently
classified as non-Indian lands.
The Indian lands portion of the mine, or North Area, is regulated
by OSM under the Federal program for Indian lands at 30 CFR Part 750.
The North Area includes 7,019 acres of Navajo Reservation lands and 946
acres of adjacent off-reservation tribal fee lands. As noted earlier,
all lands within the exterior boundaries of Federal Indian reservations
are Indian lands for purposes of SMCRA regulation. Surface
[[Page 8470]]
coal mining operations, or portions thereof, located on such lands are
and will continue to be regulated by OSM, in consultation with the
affected Indian tribes, the Bureau of Indian Affairs and, as
applicable, the Bureau of Land Management, unless legislation is
enacted, pursuant to Section 710 of SMCRA, to allow Indian tribes to
assume SMCRA regulatory jurisdiction on Indian lands.
The tribal fee lands on which OSM regulates are split-estate lands
where the surface rights are owned by the Navajo Nation and the mineral
rights are privately owned. Those lands were held to be Indian lands
for purposes of SMCRA in two 1994 district court decisions. (Pittsburg
& Midway Coal Mining Co. v. Babbitt, No. CIV 90-730 JC (D.N.M. Sept.
13, 1994); and New Mexico v. Lujan, No. 89-758-M (D.N.M. Feb. 14,
1994)). Those decisions upheld the Department's interpretation that
lands located outside a Federal Indian reservation, the surface estate
of which is owned by an Indian tribe and the mineral estate of which is
privately owned, are Indian lands within the meaning of section 701(9)
of SMCRA and thus are subject to OSM's regulatory jurisdiction. Prior
to those rulings, the State of New Mexico also had asserted SMCRA
regulatory jurisdiction on the tribal fee lands at the McKinley Mine.
As noted earlier, all of the lands within the McKinley Mine South
Area are presently classified as non-Indian lands for purposes of SMCRA
and are regulated by the State of New Mexico. New Mexico is a primacy
State, meaning that it has in place an approved SMCRA program for the
regulation of surface coal mining and reclamation operations located on
State and private lands within its borders. New Mexico also has in
place a State-Federal cooperative agreement whereby the State regulates
coal mining operations located on Federal lands within its borders. The
New Mexico Mining and Minerals Division (MMD), located within the
State's Energy, Minerals and Natural Resources Department, is the State
regulatory authority.
The McKinley Mine South Area is presently 10,727 acres in size and
is composed of Federal, private, State, and allotted lands occurring in
a complex checkerboard pattern. The surface ownership consists of 4,073
acres of State, Federal and private lands, and 6,654 acres of allotted
lands. The allotted lands include all or part of 45 individual Indian
trust allotments, 42 of which overlie leased Federal coal and three of
which overlie unleased Federal coal. As noted earlier in this preamble,
all of the McKinley allotments are included in the Mescal settlement
and, under the terms of that agreement, the McKinley allottees are to
be issued supplemental trust patents within six months of the
expiration, relinquishment, or other termination of the existing
Federal coal leases. Until that time, the United States will retain
ownership of the reserved minerals and the mining of the McKinley coal
leases will continue to be subject to the Federal mining plan approval
requirements of OSM's regulations at 30 CFR Chapter VII and BLM's
regulations at 43 CFR Group 3400.
8. Transfer of SMCRA Regulatory Jurisdiction
This proposed rulemaking to include within the definition of Indian
lands all individual Indian trust allotments located within the Navajo
land consolidation area would result in the transfer of SMCRA
regulatory jurisdiction on such allotments from the State to OSM. The
immediate effect of the rule change would be limited to the 6,654 acres
of allotted lands included in the McKinley Mine South Area permit that
are currently regulated by the New Mexico MMD. As of the effective date
of the rule, OSM would assume SMCRA regulatory jurisdiction on those
lands. OSM would also be the regulatory authority for any future
surface coal mining operations, or portions thereof, located on
individual Indian trust allotments lying within the off-reservation
portion of the Navajo land consolidation area.
OSM's assumption of regulatory jurisdiction on individual Indian
trust allotments located within the Navajo consolidation area would
include permitting, and inspection and enforcement (I&E) duties that
are now performed by the State. As noted earlier, the McKinley Mine is
already subject to joint OSM-State regulation because it includes both
Indian lands and non-Indian lands within its approved permit
boundaries. This dual regulatory situation makes it essential that OSM
and the State closely coordinate their permitting and I&E activities
for the McKinley Mine to ensure consistent and non-duplicative
regulation. Should OSM assume jurisdiction on the allotted lands
currently under State permit in the McKinley Mine South Area, the need
for regulatory coordination between OSM and New Mexico MMD would be
considerably greater given the checkerboard pattern in which the 45
individual allotments occur within that area.
This proposed rulemaking would also trigger certain changes in the
consultation procedures for surface coal mining and reclamation
operations whose permit areas include allotted lands within the Navajo
consolidation area. Specifically, consultation with individual allottee
surface and/or mineral owners would be required in relation to
permitting and other regulatory actions under SMCRA involving such
allottees' lands. For the McKinley Mine, OSM consults with the Navajo
Nation, pursuant to 30 CFR 750.6(a)(4), concerning the protection of
non-coal resources of the area affected by the mine. Should allotted
lands come to be defined as Indian lands for purposes of SMCRA, as
proposed in this rulemaking, consultation would take place with both
the affected Navajo allottees and the Navajo Nation for the portion of
the mine located on allotted lands. Any potential conflicts that might
arise between the allottees and the tribe with respect to the conduct
of surface coal mining operations on allotted lands would be dealt with
on a case-by-case basis.
OSM's regulations concerning consultation on Indian lands are
contained in 30 CFR 750.6. A more detailed discussion of the
consultation process, and how it would apply to allotted lands, can be
found later in this preamble in conjunction with the discussion of
OSM's proposed changes to those regulations.
9. Allocation of Abandoned Mine Land Fees and Title V Funding
The change in jurisdiction on allotted lands that would result from
this rulemaking would affect the allocation of abandoned mine land
(AML) fees that are collected from coal mining operations on such
lands. OSM collects such fees (35 cents per ton for surface coal mines;
15 cents per ton for underground mining; and 10 cents per ton for
lignite) pursuant to Title IV of SMCRA and the implementing
regulations. The fees are used for eligible abandoned mine land
reclamation projects and activities, or for construction of public
facilities related to the coal or minerals industry. All of the AML
fees are deposited in the U.S. Treasury for subsequent allocation to
the so-called Federal share and the State or Tribal share. Fifty-
percent of the fees from coal produced from State and private lands
within a State, or from coal produced from Indian lands, is allocated
to the respective State or Tribal share for use, once appropriated, on
eligible reclamation projects and activities. The other 50% is
allocated to the Federal share for uses, once appropriated, that
include Federal reclamation projects, additional State or
[[Page 8471]]
Tribal grants, the Small Operator Assistance Program, AML emergency
programs, and Federal administrative expenses.
As of the effective date of the rule change, the non-Federal share
of AML fees derived from coal production on allotted lands within the
Navajo land consolidation area would be allocated to the Navajo
Nation's portion of the AML fund, rather than to New Mexico's portion
of the fund. For the McKinley Mine, OSM estimates the total amount of
AML fees derived from the four federal coal leases underlying the
allotted lands portion of the permit area at $831,250 to $969,070 per
year based upon 1997 and 1998 coal production levels. Thus, the 50%
non-Federal share that would be redirected from the New Mexico State
share to the Navajo Tribal share would range from $415,000 to $484,535
per year based upon current production levels.
The proposed rule could also affect the amount of annual funding
that OSM provides to the State of New Mexico to support the
implementation of its Title V regulatory program. OSM calculates the
Title V grant amount according to a funding formula that includes,
among other things, the total acreage that is subject to State
regulatory jurisdiction. This proposed rulemaking would reduce the
amount of land subject to State regulation, which could potentially
result in a decrease the State's annual Title V regulatory funding.
Based upon the Federal lands funding option that New Mexico has chosen,
OSM anticipates that the reduction in grant funding would be
approximately 4.15%.
B. 30 CFR Parts 740 and 746: General Requirements for Surface Coal
Mining and Reclamation Operations on Federal Lands; Review and Approval
of Mining Plans
OSM's regulations governing surface coal mining and reclamation
operations on Federal lands are contained in 30 CFR Subchapter D: Parts
740, 745 and 746. Part 740 sets forth the general requirements for
mining and reclamation operations on Federal lands. Part 745 sets forth
requirements for the development, approval and administration of State-
Federal cooperative agreements under section 523(c) of SMCRA. Part 746
specifies the process and requirements for review and approval,
disapproval or conditional approval of mining plans on lands containing
leased Federal coal. For purposes of this rulemaking, only Parts 740
and 746 are proposed for revision for the reasons described below.
The regulations at 30 CFR Subchapter D currently apply exclusively
to ``Federal lands.'' The term Federal lands is defined, in pertinent
part, at Section 700.5 as ``any land, including mineral interests,
owned by the United States, without regard to how the United States
acquired ownership of the lands or which agency manages the lands. It
does not include Indian lands'' (emphasis added).
This proposed rulemaking, together with the previously mentioned
Mescal agreement, would create a situation where the allotted lands
included within the McKinley Mine permit area would become Indian lands
for purposes of SMCRA regulation, while the underlying coal would
continue to be subject to the various requirements applicable to leased
Federal coal under the MLA. Those requirements include statutory and
regulatory provisions administered by BLM, as well as certain
requirements administered by OSM. In OSM's regulations, provisions
governing leased Federal coal can be found in the Federal lands program
at 30 CFR Parts 740 and 746. Those requirements would continue to apply
to the Federal coal leases at the McKinley Mine.
OSM is proposing a series of revisions to the regulations at Parts
740 and 746 that would recognize that responsibilities and requirements
pertaining to leased Federal coal would continue to apply to Federal
coal leases on Indian lands. Thus, in those instances where leased
Federal coal underlies allotted lands, both the Indian lands program at
Part 750 and the regulations at Parts 740 and 746 pertaining to leased
Federal coal would apply. Specific proposed changes to Parts 740 and
746 are discussed below.
1. Section 740.1: Scope and Purpose
Section 740.1 currently states that Part 740 ``provides for the
regulation of surface coal mining and reclamation operations on Federal
lands.'' OSM is proposing to add rule language that would also
recognize the applicability of Part 740 to the mining of leased Federal
coal on Indian lands. This proposed change is meant to preclude any
regulatory ambiguity that might arise concerning the continued
applicability of the Federal lands program to leased Federal coal on
allotted lands should those lands come to be defined as Indian lands.
2. Section 740.4: Responsibilities
The regulations at 30 CFR 740.4(b)(1)-(5) specify OSM's regulatory
responsibilities for surface coal mining and reclamation operations on
Federal lands. OSM is proposing to amend Section 740.4(b) by adding a
new provision at the end of that section concerning the regulation of
surface coal mining and reclamation operations on Indian lands
containing leased Federal coal. The proposed rule language would
provide for OSM regulation on such lands in accordance with the
requirements of the Indian lands program at Part 750 and the applicable
requirements of the Federal lands program as specified in a new Section
740.11(h) that is also being proposed as part of this rulemaking.
(Section 740.11 currently consists of paragraphs (a)-(f). A new
paragraph (g) has already been proposed in another rulemaking (62 FR
4836, 4859; January 31, 1997). A new paragraph (h) is being proposed as
part of this rulemaking and will be discussed somewhat later in this
preamble.)
3. Section 740.5: Definitions
Leased Federal Coal
Section 740.5 currently defines ``leased Federal coal'' as ``coal
leased by the United States pursuant to 43 CFR part 3400, except
mineral interests in coal on Indian lands'' (emphasis added). As noted
earlier, the four Federal coal leases underlying allotted lands at the
McKinley Mine are to remain in effect pursuant to the Mescal settlement
until their expiration, relinquishment, or other termination. Under
this proposed rulemaking, those allotments would be classified as
Indian lands for purposes of SMCRA regulation, thereby creating at
least one instance in which leased Federal coal would be located on
Indian lands. Therefore, OSM is proposing to amend the definition of
leased Federal coal by removing the phrase ``except mineral interests
in coal on Indian lands.'' OSM is also proposing to replace the current
cross-reference to ``43 CFR part 3400'' in the definition with a
reference to ``43 CFR Group 3400'' in order to fully and accurately
cite BLM's coal management regulations at 43 CFR Subchapter C. Those
regulations consist of nine parts, and various subparts, all of which
come under the general heading of ``Group 3400--Coal Management.''
Permit Application Package
The term ``permit application package'' is defined at Section 740.5
as:
a proposal to conduct surface coal mining and reclamation operations
on Federal lands, including an application for a permit, permit
revision or permit renewal, all the information required by the Act,
this subchapter, the applicable State program, any applicable
cooperative agreement and all other applicable laws and regulations
including, with respect to leased Federal coal, the Mineral Leasing
Act and its implementing regulations (emphasis added).
[[Page 8472]]
For the reasons noted above under the preamble discussion of leased
Federal coal, and elsewhere in this preamble, OSM is proposing to amend
the definition of permit application package so that it includes mining
proposals on Federal lands and on Indian lands containing leased
Federal coal. OSM is also proposing to replace the reference to the
applicable ``State program'' with applicable ``regulatory program.''
The proposed rule language would bring the definition into conformity
with the other changes to the Federal and Indian lands programs being
proposed in this rulemaking. For clarity, OSM is also proposing a non-
substantive change in which the various information requirements
specified in the definition are grouped and listed in itemized form.
4. Section 740.11: Applicability
The regulations at 30 CFR 740.11(a)-(f) specify when and to what
extent the Federal lands program applies to coal exploration and
surface coal mining and reclamation operations on Federal lands in
States with approved regulatory programs, with and without cooperative
agreements, and in other situations. OSM is proposing to add a new
paragraph at the end of Section 740.11 that would pertain specifically
to surface coal mining and reclamation operations on Indian lands
containing leased Federal coal. The proposed provision would specify
the applicable regulatory requirements for mining operations on such
lands, namely the Indian lands program at 30 CFR Part 750, the relevant
provisions of Part 740, and Part 746. The various sections of Part 740
that are proposed for inclusion in the list of applicable provisions
are those that either specify or reference requirements pertaining to
leased Federal coal, or are permitting requirements that have no
equivalent counterpart in the Indian lands program at Part 750. Part
746 is proposed for inclusion in its entirety because all of its
provisions, namely the process and requirements for the review and
approval of mining plans and mining plan modifications, apply to leased
Federal coal. The proposed provision would be designated as paragraph
(g) and would read as follows:
Where surface coal mining and reclamation operations are on
Indian lands, as the term Indian lands is defined at Sec. 700.5, and
the lands include leased Federal coal, the Indian lands program at
part 750 and the following provisions of this subchapter apply:
(1) Section 740.1;
(2) Sections 740.4(a)(1), (b)(1), (b)(6), (d)(1)-(5) and (d)(9);
(3) Section 740.5;
(4) Section 740.11(d);
(5) Sections 740.13(a)(1)-(2), (c)(1)-(3) and (d)(2);
(6) Sections 740.15(a) and (d)(1);
(7) Sections 740.19(a)(1)-(2) and (b)(2); and
(8) Part 746
The proposed rule language would recognize the Indian lands program
as the applicable regulatory program for purposes of SMCRA compliance
on Indian lands containing leased Federal coal, while also identifying
the Federal lands program requirements that must be met to ensure that
the mining of Federal coal on such lands is carried out in accordance
with the Mineral Leasing Act, as amended, and other applicable statutes
governing leased Federal coal.
5. Section 746.13: Decision Document and Recommendation on Mining Plan
The regulations at Section 746.13 specify the requirements that OSM
must meet in preparing and submitting to the Secretary a decision
document recommending approval, disapproval or conditional approval of
the mining plan for leased Federal coal. Section 746.13(f) requires the
mining plan recommendation to reflect the ``findings and
recommendations of the regulatory authority with respect to the permit
application and the State program.'' As discussed earlier in this
preamble, Indian lands containing leased Federal coal would not be
subject to the requirements of the State program, but would instead be
regulated under the provisions of the Indian lands program at 30 CFR
Part 750. Therefore, OSM is proposing to replace the reference to the
State program in Section 746.13(f) with ``applicable regulatory
program'' in order to provide the necessary flexibility in the rule
language.
C. 30 CFR Part 750: Requirements for Surface Coal Mining and
Reclamation Operations on Indian Lands
The regulations at 30 CFR Part 750 govern surface coal mining and
reclamation operations on Indian lands and comprise the Federal program
for Indian lands. OSM is proposing to amend the Indian lands program to
the extent necessary to address the regulatory and jurisdictional
issues arising from the proposed clarification of the definition of
Indian lands and to avoid confusion in implementation of the Mescal
settlement as it relates to the mining of leased Federal coal on
allotted lands. The proposed revisions are intended to clarify the
regulatory requirements and consultation procedures that would apply to
surface coal mining and reclamation operations involving allotted
lands, including such lands containing leased Federal coal, and to
ensure the continuing and uninterrupted regulation of mining operations
that presently include such lands.
1. Section 750.6: Responsibilities
Regulation of Leased Federal Coal on Indian Lands
The regulations at 30 CFR 750.6(a)-(d) set forth the regulatory
responsibilities of OSM, BLM, MMS and BIA, respectively, on Indian
lands, including the required consultation and interagency coordination
procedures. BLM's responsibilities concerning coal exploration and
mining operations are specified at Section 750.6(b)(1)-(4). Section
750.6(b)(1) concerns BLM's responsibility to review and approve,
conditionally approve, or disapprove coal exploration and mining plans
on Indian lands as provided in BIA's regulations at 25 CFR Chapter I or
in specific Indian mineral agreements. OSM is proposing rule language
that would also recognize BLM's continuing responsibility to administer
the Mineral Leasing Act, as amended, and other applicable statutes,
with respect to coal mining, production and resource recovery and
protection operations on Federal coal leases and licenses, regardless
of surface ownership, as provided in 43 CFR Chapter II, Group 3400.
This would include the Federal coal underlying the individual Indian
trust allotments included within the McKinley Mine permit area. The
proposed amendment is not intended to make any substantive change, but
rather to recognize that BLM's existing jurisdiction under the MLA and
other laws governing Federal coal resources would not be affected by
the proposed rule. The proposed provision would be designated as 30 CFR
750.6(b)(2), and the subsequent paragraphs in Section 750.6(b) would be
renumbered accordingly.
Consultation and Coordination on Allotted Lands
The regulations at Section 750.6(d) specify BIA's consultation
responsibilities with respect to surface coal mining and reclamation
operations on Indian lands. Section 750.6(d)(1) requires BIA to consult
directly with and provide representation for Indian mineral owners and
other Indian land owners in matters relating to surface coal mining and
reclamation operations on Indian lands. The term ``Indian mineral
owner'' is defined at Section 750.5 to include both individual Indians
and Indian tribes who own land or mineral interests in land the title
to which is held in trust by the United States or is subject to a
restriction
[[Page 8473]]
against alienation imposed by the United States. Thus, the definition
would encompass individual Indian allottees. In addition, Section
750.6(d)(2) provides that, after consultation with the affected tribe,
BIA is responsible for reviewing and making recommendations to OSM
concerning permit applications, renewals, revisions or transfers of
permits, permit rights or performance bonds.
As noted earlier in this preamble, one of the consequences of this
proposed clarification to the definition of Indian lands would be a
change in the consultation procedures for surface coal mining and
reclamation operations involving allotted lands located within the
Navajo consolidation area. Specifically, consultation with individual
allottee surface and/or mineral owners would be required when mining
and reclamation activities involve such allottees' lands. Such
consultation would be appropriately carried out by BIA pursuant to 30
CFR 750.6(d)(1).
Because allotted lands within the Navajo land consolidation area
could potentially contain non-coal resources of significance to the
tribe, OSM would consult with the Navajo Nation as appropriate to
ensure that any such resources are identified and the tribe's interests
and concerns addressed. OSM would carry out such consultation with the
tribe pursuant to 30 CFR 750.6(a)(4). That regulation requires OSM to
consult with the BIA and the affected tribe with respect to special
requirements relating to the protection of non-coal resources of the
area affected by surface coal mining and reclamation operations, and to
assure operator compliance with such requirements.
As noted above, Section 750.6(d)(2) calls for BIA consultation with
the affected tribe in reviewing and making recommendations to OSM
concerning permit applications and other types of permitting actions,
and performance bonds. However, that requirement is properly applied to
lands held in trust for an Indian tribe; on allotted lands, where both
the land (surface and/or mineral) ownership interest and the Federal
trust relationship is with the individual allottees, BIA's
responsibility to consult lies with the allottee land owners. Any
tribal concerns related to mining operations on allotted lands would be
addressed through OSM's consultation with the tribe in its capacity as
the SMCRA regulatory authority on Indian lands.
The rule language at Section 750.6(d)(2) refers only to BIA's
responsibility to consult with the affected tribe, and thus differs
from Section 750.6(d)(1) which refers to BIA's responsibility to also
consult with individual Indian mineral owners or other Indian land
owners, as appropriate. Section 750.6(d)(2) is also inconsistent with
this proposed rulemaking which calls for BIA to consult with Indian
allottees when permitting actions for surface coal mining and
reclamation operations involve allotted lands. Therefore, OSM is
proposing to amend Section 750.6(d)(2) to refer to BIA's responsibility
to consult with the affected tribe, Indian mineral owners, or other
Indian land owners, as appropriate, prior to making recommendations to
OSM concerning permit applications and performance bonds.
Section 750.6(d)(3) addresses BIA's responsibility to consult with
the affected Indian tribe in reviewing mining plans and making
recommendations to the Bureau of Land Management pursuant to BIA's
regulations at 25 CFR 216.7. The regulations at 25 CFR Part 216 govern
surface exploration, mining, and reclamation on Indian lands. The term
``mining plan,'' as used in those regulations, pertains specifically to
Indian lands. It should not be confused with a mining plan for leased
Federal coal, as used in OSM's Federal lands regulations at 30 CFR
Parts 740 and 746, which is subject to a different set of statutory and
regulatory requirements including the Mineral Leasing Act, as amended,
and other applicable laws. Pursuant to 25 CFR 216.2, the regulations at
Part 216 do not apply where minerals underlie lands ``the surface of
which is not owned by the owner of the minerals.'' Prior to the Mescal
settlement, the mineral estate for the vast majority of individual
Indian trust allotments located within the Navajo consolidation area
was federally owned, while the surface estate was owned by the
allottees. However, with the issuance of supplemental trust patents to
individual Indian allottees under the Mescal agreement, there is now
the potential for surface coal mining operations, and associated mining
plans, involving allottee-owned coal in the future. Therefore, OSM is
proposing to amend the rule language at 30 CFR 750.6(d)(3) to specify
BIA consultation with the affected tribe, Indian mineral owners, or
other Indian land owners, as appropriate, in reviewing and making
recommendations on mining plans on Indian lands.
2. Section 750.12: Permit Applications
Transfer of SMCRA Regulatory Jurisdiction on Allotted Lands
The regulations at 30 CFR 750.12 specify the applicable content and
processing requirements for permit applications for surface coal mining
operations on Indian lands. Under Section 750.12(c)(1), Part 774
applies to the processing of permit applications on Indian lands. This
part specifies the requirements for permit revisions, permit renewals,
and transfer, assignment or sale of permit rights. Under Section
774.11(b), the regulatory authority may, at any time, require
reasonable revision of a permit to ensure compliance with the Act and
the regulatory program.
OSM anticipates that the change in regulatory jurisdiction on
allotted lands that would occur under this proposed rule would require
us to invoke this provision at the McKinley Mine. Those lands are
currently regulated under a State program permit issued by the New
Mexico MMD, but would come under the purview of the Federal program for
Indian lands as of the effective date of the rule change. Consequently,
P&M would be required to submit to OSM a permit revision application
incorporating the allotted lands portion of the mine into its Indian
lands permit under the procedures described below.
Upon issuance of the final rule, OSM would send written
notification to P&M, the Navajo Nation, New Mexico MMD, the Bureau of
Indian Affairs, and the Bureau of Land Management of the imminent
change in regulatory jurisdiction. The notification would advise P&M of
the need to submit for OSM review a permit revision application
incorporating the allotted lands currently under State permit at the
McKinley Mine into its existing Federal permit. OSM would then review
the application to determine whether any changes are necessary to bring
the permit into compliance with the Federal program for Indian lands.
If OSM determines that changes are necessary, the procedures of 30 CFR
750.12(c)(3)(ii) governing permit revisions on Indian lands would
apply.
OSM invites comments on this proposed transition procedure, and is
particularly interested in suggestions on how to minimize disruption to
mine operations and the regulatory process during any transfer of
jurisdiction. In addition, OSM is seeking comment on whether this
procedure would require further changes to our regulations to include a
provision analogous to 30 CFR 773.11(d)(1) which allows for continued
operations under State program permits
[[Page 8474]]
when a Federal regulatory program supersedes an approved State program.
Indian Lands Containing Leased Federal Coal
OSM is proposing to amend Section 750.12(c) by adding a new
paragraph pertaining specifically to Indian lands containing leased
Federal coal. The proposed provision would reference the list of
applicable regulatory requirements for such lands that OSM is proposing
to include in the Federal lands program at 30 CFR 740.11(h) as part of
this rulemaking. The proposed cross-reference to Section 740.11(h)
would be designated as Section 750.12(c)(3), and the existing
regulations at Section 750.12(c)(3) would be redesignated as Section
750.12(c)(4).
OSM is also proposing a change in the rule language at existing
Section 750.12(c)(3)(i)(which would be redesignated as Section
750.12(c)(4)(i) under this proposed rulemaking). The regulations at
Section 750.12(c)(3) prescribe special requirements for surface coal
mining and reclamation operations on Indian lands. Section
750.12(c)(3)(i) concerns the transfer or assignment of leasehold
interests on Indian lands and specifies that such transfers or
assignments may be done ``only in accordance with 25 CFR parts 211 and
212.'' The regulations at 25 CFR Parts 211 and 212 govern leases for
the development of, respectively, Indian tribal and individual Indian
oil and gas, geothermal, and solid mineral resources. Thus, those
regulations would not apply to Federal coal leases on Indian lands,
including the four Federal coal leases underlying the allotted lands at
the McKinley Mine. For Federal coal leases, any transfer or assignment
of leasehold interests may be done only in accordance with BLM's
regulations at 43 CFR Part 3453. Therefore, OSM is proposing to amend
the rule language at what would be the newly designated Section
750.12(c)(4)(i) to reference 25 CFR Parts 211 and 212, as well as 43
CFR Part 3453, as applicable.
IV. Procedural Determinations
A. Executive Order 12866--Regulatory Planning and Review
This document is not a significant rule and is not subject to
review by the Office of Management and Budget under Executive Order
12866.
1. This rule will not have an effect of $100 million or more on the
economy. It will not adversely affect in a material way the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or Tribal governments or communities. The only
geographic region where an economic impact would likely occur under the
rule would be at the McKinley Mine in New Mexico. The direct and
indirect economic impacts to the mine from the transfer of jurisdiction
to OSM would extend only to the actual costs associated with submitting
a permit revision application for those allotted lands that are
currently regulated by the State of New Mexico. The cost would be
extremely small in comparison to the size of the mine. The economic
impacts of the rule with regard to AML fees were previously discussed
in the preamble in section III.9.
2. This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
3. This rule does not alter user fees or loan programs or the
rights or obligations of their recipients. This rule would alter the
allocation of AML fees that are collected from coal mining operations
that include individual Indian trust allotments within their approved
permit areas and are located within the Navajo Land Consolidation Area
in New Mexico. Specifically, as of the effective date of the rule
change, the 50% non-Federal share of AML fees derived from coal
production on allotted lands within the consolidation area would be
allocated to the Navajo Nation's portion of the AML fund, rather than
to the State of New Mexico's portion of the fund. Only one mine in New
Mexico would be affected by the rule at this time. Based upon current
coal production figures at that mine, the amount of affected AML fees
would be less than $500,000,000 annually. The rule could also affect
the amount of annual grant monies that OSM provides to the State of New
Mexico to support implementation of its SMCRA regulatory program
because it would reduce the amount of land subject to State regulation,
which could potentially decrease the State's annual regulatory funding.
OSM anticipates that the reduction in grant monies would be about 4.15%
of the State's yearly grant allocation.
4. The legal and policy issues raised in this rule are an expansion
of issues previously raised during the implementation of SMCRA. The
proposed rule asserts for the first time that specified allotted lands
would be deemed to be Indian Lands. The State of New Mexico challenged
OSM's 1984 regulations establishing the Federal program for Indian
lands at 30 CFR Part 750. In response to that challenge, OSM agreed to
issue a clarification of its 1984 regulatory preamble and disclaim any
assertion that all individual allotments outside the boundaries of an
Indian reservation were ``Indian lands'' for the purpose of SMCRA. See
Valencia Energy Co., 109 IBLA 59 (1989); and 53 FR 3992, 2993 (February
10, 1988). OSM has subsequently taken the position that this meant that
OSM would address on a case-by-case basis whether allotments are
``Indian Lands.''
B. Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This certification is based on the findings that the regulatory
additions in the rule will not change costs to industry or to the
Federal, State, or local governments. Furthermore, the rule produces no
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of United States enterprises to compete with
foreign-based enterprises in domestic or export markets. As previously
discussed, the proposed rule would have an economic impact on only one
coal mine and one Indian Tribe.
C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
1. Does not have an annual effect on the economy of $100 million or
more. The only geographic region where an economic impact will likely
occur under the proposed rule would be in the vicinity of the McKinley
Mine in New Mexico. More specifically, the Indian trust allotments
(6,654 acres) in the McKinley Mine South Area permit would be deemed as
Indian lands rather than private or Federal lands under the proposed
rule and SMCRA regulatory jurisdiction on those lands would be
transferred from the State of New Mexico to OSM as of the effective
date of the proposed rule. OSM's regulatory jurisdiction on such lands
would include the permitting, inspection and enforcement functions
which are now performed by the State of New Mexico.
Currently, the McKinley Mine is owned and operated by Pittsburg &
Midway. The direct or indirect economic impacts to P&M from the
transfer of jurisdiction to OSM would extend only to the actual costs
associated with submitting a permit revision application for those
allotted lands that are now regulated by the
[[Page 8475]]
State of New Mexico. In addition, the productivity or employment in the
local economy would not be affected solely due to the change of
regulatory authority from State government to the Federal government.
The proposed rule could potentially affect the amount of annual funding
that OSM provides to the State of New Mexico to support the
implementation of the State's Title V regulatory program under SMCRA.
In determining the Title V grant amount, OSM uses a funding formula
that includes, among other things, the total acreage that is subject to
State regulatory jurisdiction. The proposed rulemaking would reduce the
amount of land subject to State regulation, which could potentially
result in a decrease in the State's annual Title V regulatory funding.
Based upon the Federal lands funding option that New Mexico has chosen,
OSM anticipates that the reduction in annual funding could be
approximately 4.15 percent.
2. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions for the reasons previously stated.
3. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises for
the reasons stated above.
D. Unfunded Mandates
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
or local governments or the private sector. A statement containing the
information required by the Unfunded Mandates Reform Act (1 U.S.C.
1531, et seq.) is not required.
E. Executive Order 12630--Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications.
F. Executive Order 12612--Federalism
In accordance with Executive Order 12612, the rule does not have
significant Federalism implications to warrant the preparation of a
Federalism Assessment for the reasons discussed above.
G. Executive Order 12988--Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
H. Paperwork Reduction Act
This rule does not contain collections of information which require
approval by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. since it affects fewer than ten respondents.
I. National Environmental Policy Act
OSM has prepared a draft environmental assessment (EA) of this
proposed rule and has made a tentative finding that it would not
significantly affect the quality of the human environment under section
102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42
U.S.C. section 4332(2)(C). It is anticipated that a finding of no
significant impact (FONSI) will be made for the final rule in
accordance with OSM procedures under NEPA. The EA is on file in the OSM
Administrative Record at the address specified previously (see
ADDRESSES). The EA will be completed and a finding made on the
significance of any resulting impacts before we publish the final rule.
J. Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this proposed rule easier to understand, including answers to questions
such as the following: (1) Are the requirements in the proposed rule
clearly stated? (2) Does the proposed rule contain technical language
or jargon that interferes with its clarity? (3) Does the format of the
proposed rule (grouping and order of sections, use of headings,
paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be
easier to understand if it were divided into more (but shorter)
sections? (A ``section'' appears in bold type and is preceded by the
symbol ``Sec. '' and a numbered heading; for example, Sec. 874.17 AML
agency procedures for reclamation projects receiving less than 50
percent government funding.). (5) Is the description of the proposed
rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful
in understanding the proposed rule? What else could we do to make the
proposed rule easier to understand?
Send a copy of any comments that concern how we could make this
proposed rule easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street NW, Washington, DC
20240. You may also e-mail the comments to this address:
Exsec@ios.doi.gov.
Author
The principal author of this proposed rule is Suzanne Hudak, Office
of Surface Mining Reclamation and Enforcement, 1951 Constitution Ave.,
N.W., Washington, D.C. 20240. Telephone: (202) 208-2661.
List of Subjects
30 CFR Part 700
Administrative practice and procedure, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
30 CFR Part 740
Public lands, Mineral resources, Reporting and recordkeeping
requirements, Surety bonds, Surface mining, Underground mining.
30 CFR Part 746
Public lands--mineral resources, Reporting and recordkeeping
requirements, Surface mining, underground mining.
30 CFR Part 750
Indians--lands, Reporting and recordkeeping requirements, Surface
mining.
Dated: February 11, 1999.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.
For the reasons given in the preamble, OSM is proposing to amend 30
CFR parts 700, 740, 746 and 750 as set forth below:
PART 700--GENERAL
1. The authority citation for part 700 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended; and Pub. L. 100-
34.
2. In Sec. 700.5, the definition of ``Indian lands'' is revised to
read as follows:
Sec. 700.5 Definitions.
* * * * *
Indian lands means--
(a) All lands, including mineral interests, within the exterior
boundaries of any Federal Indian reservation, notwithstanding the
issuance of any patent or rights-of-way; and
(b) All lands including mineral interests held in trust for or
supervised by an Indian tribe. Such lands include, but are not limited
to, all allotments held in trust by the Federal government for an
individual Indian or Indians, the Indian titles to which have not been
extinguished, including rights-of-way
[[Page 8476]]
running through such allotments, where such allotments are located
within a tribal land consolidation area approved by the Secretary or
his authorized representative under 25 U.S.C. 2203.
* * * * *
PART 740--GENERAL REQUIREMENTS FOR SURFACE COAL MINING AND
RECLAMATION OPERATIONS ON FEDERAL LANDS
3. The authority citation for part 740 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq.
4. Section 740.1 is amended by adding a sentence at the end of the
section to read as follows:
Sec. 740.1 Scope and purpose.
It also provides the process and requirements for the mining of
leased Federal coal on Indian lands.
5. Section 740.4 is amended by removing the word ``and'' at the end
of paragraph(b)(4), removing the period at the end of paragraph(b)(5)
and adding a semicolon and the word ``and'' at the end of the same
paragraph, and adding a new paragraph (b)(6) to read as follows:
Sec. 740.4 Responsibilities.
* * * * *
(b) * * *
(6) When Federal coal is located on Indian lands, as the term
Indian lands is defined at Sec. 700.5 of this chapter, regulating
surface coal mining and reclamation operations in accordance with the
Indian lands program at part 750 of this chapter and the requirements
in Sec. 740.11(h).
* * * * *
6. In paragraph (a) of Sec. 740.5, the definitions of ``Leased
Federal coal'' and ``Permit application package'' are revised to read
as follows:
Sec. 740.5 Definitions.
(a) * * *
Leased Federal coal means coal leased by the United States under 43
CFR Group 3400.
* * * * *
Permit application package means a proposal to conduct surface coal
mining and reclamation operations on Federal lands or on Indian lands
containing leased Federal coal, including the following materials:
(1) An application for a permit, permit revision or permit renewal;
(2) All the information required by the Act, this subchapter, the
applicable regulatory program, any applicable cooperative agreement and
all other applicable laws and regulations; and
(3) For leased Federal coal, the information required by the
Mineral Leasing Act and its implementing regulations.
* * * * *
7. In Sec. 740.11, paragraph (h) is added to read as follows:
Sec. 740.11 Applicability.
* * * * *
(h) Where surface coal mining and reclamation operations are on
Indian lands, as the term Indian lands is defined at Sec. 700.5 of this
chapter, and the lands include leased Federal coal, the Indian lands
program at part 750 of this chapter and the following provisions of
this subchapter apply:
(1) Section 740.1;
(2) Sections 740.4(a)(1), (b)(1), (b)(6), (d)(1) through (5) and
(d)(9); (3) Section 740.5;
(4) Section 740.11(d);
(5) Sections 740.13(a)(1), (2), (c)(1) through (3) and (d)(2);
(6) Sections 740.15(a) and (d)(1);
(7) Sections 740.19(a)(1), (2) and (b)(2); and
(8) Part 746.
PART 746--REVIEW AND APPROVAL OF MINING PLANS
8. The authority citation for part 746 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq.
9. In Sec. 746.13, paragraph (f) is revised to read as follows:
Sec. 746.13 Decision document and recommendation on mining plan.
* * * * *
(f) The findings and recommendations of the regulatory authority
with respect to the permit application and the applicable regulatory
program; and
* * * * *
CFR PART 750--REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION
OPERATIONS ON INDIAN LANDS
10. The authority citation for part 750 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended; and Pub. L. 100-
34.
11. In Sec. 750.6, paragraphs (b)(2) through (4) are redesignated
as (b)(3) through (5), a new paragraph (b)(2) is added, and paragraphs
(d)(2) and (3) are revised to read as follows:
Sec. 750.6 Responsibilities.
* * * * *
(b) * * *
(2) Administering the Mineral Leasing Act of 1920, 30 U.S.C. 181 et
seq., and other applicable statutes, with respect to coal mining,
production, and resource recovery and protection operations on Federal
coal leases and licenses, regardless of surface ownership, as provided
in 43 CFR Chapter II, Group 3400;
* * * * *
(d) * * *
(2) After consultation with the affected tribe, Indian mineral
owners, or other Indian land owners, as appropriate, reviewing and
making recommendations to OSM concerning permit applications, renewals,
revisions or transfers of permits, permit rights or performance bonds;
and
(3) After consultation with the affected tribe, Indian mineral
owners or other Indian land owners, as appropriate, reviewing and
making recommendations to the Bureau of Land Management under 25 CFR
216.7.
12. In Sec. 750.12, paragraph (c)(3) is redesignated as paragraph
(c)(4), a new paragraph (c)(3) is added, and the last sentence of newly
designated paragraph (c)(4)(i) is revised, to read as follows:
Sec. 750.12 Permit applications.
* * * * *
(c) * * *
(3) On Indian lands containing leased Federal coal, the
requirements of Sec. 740.11(h) of this chapter apply.
(4) * * *
(i) * * * Leasehold interests may be transferred or assigned in
accordance with 25 CFR parts 211 or 212 or 43 CFR part 3453, as
applicable.
* * * * *
[FR Doc. 99-4153 Filed 2-18-99; 8:45 am]
BILLING CODE 4310-05-P
