E8-6692. Crow Tribe Abandoned Mine Land Reclamation Plan

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of certification.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are concurring with the Crow Tribe's certification that it has abated or reclaimed all coal-related abandoned mine land (AML) problems on Crow lands.

DATES:

Effective Date: April 1, 2008.

FOR FURTHER INFORMATION CONTACT:

Jeffrey Fleischman, Casper Field Office Director, Telephone: [phone], Internet address: [e-mail]

SUPPLEMENTARY INFORMATION:

I. Background on the Crow Plan

II. Submission of the Proposed Amendment

III. Office of Surface Mining Reclamation and Enforcement's (OSM's) Findings

IV. Summary and Disposition of Comments

V. OSM's Decision

VI. Procedural Determinations

I. Background on the Crow Plan

The Abandoned Mine Land Reclamation Program was established by Title IV of the Surface Mining Control and Reclamation Act (SMCRA, or the Act)(30 U.S.C. 1201 et seq.) in response to concerns over extensive environmental damage caused by past coal mining activities. The program is funded by a reclamation fee collected on each ton of coal that is produced. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Indian tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mines. On January 4, 1989, the Secretary of the Interior approved the Crow Tribe's abandoned mine land reclamation plan (herein after the Crow Plan). You can find general background information on the Crow Plan, including the Secretary's findings and the disposition of comments, in the January 4, 1989, Federal Register (54 FR 116). You can also find later actions concerning the Crow Plan and plan amendments at 30 CFR 756.20.

II. Submission of the Proposed Amendment

By letter dated May 29, 2007, the Crow Tribe indicated to OSM that all coal-related impacts on abandoned mine lands within the Crow Reservation have been successfully addressed under SMCRA (30 U.S.C. 1201 et seq.) (Administrative Record No. OSM-2007-0019-0006). The Crow Tribe sent the request for concurrence with its certification at its own initiative with the intent of implementing a non-coal reclamation program under its current Plan. The Crow Tribe will most likely be required to revise its AMLR Plan in the future to implement a program under section 411 of SMCRA.

We announced receipt of the proposed certification in the December 17, 2007, Federal Register (72 FR 71291). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the certification's adequacy (Administrative Record No. OSM-2007-0019-0001). We did not hold a public hearing or meeting because no one requested one. We received comments from one industry group, one State agency and three Federal agencies.

III. OSM's Findings

As discussed below, the Director of OSM, in accordance with SMCRA and 30 CFR 756.1, 884.14 and 884.15, finds that the proposed certification of completion submitted by the Crow Tribe on May 29, 2007, meets the requirements of SMCRA and the Federal regulations at 30 CFR 884.14. Accordingly, we are approving the certification.

The Chairman of the Crow Nation notified the Secretary of the Department of the Interior that the Crow Tribe certifies to the completion of all its coal reclamation projects. Section 411(a) of SMCRA provides that the head of an Indian tribe may certify to the Secretary that all of the priorities stated in section 403(a) of SMCRA for eligible lands and water have been achieved and that the Secretary, after notice in the Federal Register and opportunity for public comment, shall concur with such certification if the Secretary determines that such certification is correct.

Since the Secretary's approval of the Crow Plan, the Crow Tribe has conducted reclamation to correct or mitigate problems caused by past coal mining. The Crow Tribe has completed this reclamation in the order of priority set forth in section 403(a) of SMCRA. OSM acknowledges the potential for problems occurring in the future which relate to pre-August 3, 1977, coal mining. In accordance with 30 CFR 875.13(a)(3), the Crow Tribe agrees to acknowledge and give top priority to any coal-related problem(s) that may be found or occur after submission of the certification of completion.

Based upon the Crow Tribe's May 29, 2007, certification and the absence of any known unreclaimed AML coal-related impacts, the Director of OSM, on behalf of the Secretary, concurs with the Crow Tribe's certification that all coal-related abandoned mine land problems have been abated or reclaimed, and finds that the Crow Tribe has satisfied the requirements of section 403 of SMCRA. If a coal problem occurs or is identified in the future, the Crow Tribe must reclaim the coal-related problem. Concurrence with the Crow Tribe's certification of completion of coal reclamation means that the Crow Tribe may now utilize funds provided under Title IV of SMCRA in accordance with section 411 and its current plan.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the certification, but did not receive any (Administrative Record No. OSM-2007-0019-0001).

Industry Group Comments

On November 13, 2007, we received an e-mail from Westmoreland Resources. It is not aware of any unreclaimed coal mine lands or water under Crow jurisdiction and has no objection to the certification request (Administrative Record No. OSM-2007-0019-0003).

State Agency Comments

Under 30 CFR 884.14(a)(2) and 884.15(a), we requested comments on the certification from various State and Federal agencies with an actual or potential interest in the Crow Plan (Administrative Record No. OSM-2007-0019-0009).

On November 9, 2007, we received a letter from the Montana Historical Society stating that it has no information regarding the Crow Tribe's continuing reclamation responsibilities (Administrative Record No. OSM-2007-0019-0002).

Federal Agency Comments

On November 21, 2007, we received a letter from the Bureau of Indian Affairs stating that it is unfamiliar with the total Crow Reservation and is turning to the Superintendent of the Crow Agency for assistance in notifying OSM of any coal mining impacts that have not been reclaimed (Administrative Record No. OSM-2007-0019-0005).

On November 29, 2007, we received a letter from the U.S. Geological Survey stating that it has no comments on the Crow Tribe's requested certification of completion (Administrative Record No. OSM-2007-0019-0004).

On January 10, 2008, we received a letter from the Office of Indian Energy and Economic Development stating that it is not aware of any unreclaimed lands or water resources affected by coal mining prior to August 3, 1977, on the Crow Reservation (Administrative Record No. OSM-2007-0019-0010).

The comments listed above do not raise any concern or objection to the Crow Tribe's requested certification of completion. These comments do not require further response.

V. OSM's Decision

Based on the above findings, we approve the Crow Tribe's May 29, 2007, certification of completion.

To implement this decision, we are amending the Federal regulations at 30 CFR 756.20, which codifies decisions concerning the Crow Plan. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 405(d) of SMCRA requires that the Tribe have a program that is in compliance with the procedures, guidelines, and requirements established under the Act. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of Tribal and Federal standards.

VI. Procedural Determinations

Executive Order 12630—Takings

This rule does not have takings implications. It merely confirms a factual determination made by the Crow tribe.

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review).

Executive Order 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of Tribal AMLR plans and revisions thereof because each plan is drafted and promulgated by a specific Tribe, not by OSM. Decisions on proposed Tribal AMLR plans and revisions thereof submitted by a Tribe are based on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the applicable Federal regulations at 30 CFR Part 884.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, we have identified potential effects on a federally recognized Indian tribe (the Crow Tribe) that will result from this rule which is based on an amendment submitted by the Crow Tribe. This rule will enable the Crow Tribe to use AMLR grant monies to implement a non-coal program under its current Plan. We have been in consultation with the Crow Tribe and have fully considered tribal views while developing this final rule.

Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

No environmental impact statement is required for this rule since agency decisions on proposed Tribal AMLR plans and revisions thereof are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4321 et seq.) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

Paperwork Reduction Act

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

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.). The rule applies only to the Crow tribe, and it simply confirms a factual determination made by the tribe.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), of the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, Tribal or local government agencies, or geographic regions.

c. 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.

This determination is based upon the fact that the rule merely confirms a factual determination made by the Crow tribe.

Unfunded Mandates

This rule will not impose an unfunded mandate on State, local, or Tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the rule merely confirms a factual determination made by the Crow tribe.

List of Subjects in 30 CFR Part 756

• Abandoned mine reclamation programs
• Indian lands
• Surface mining
• Underground mining

Dated: March 18, 2008.

Billie E. Clark Jr,

Acting Regional Director, Western Region.

For the reasons set out in the preamble, Title 30, Chapter VII, Subchapter E (Tribes) of the Code of Federal Regulations is amended as set forth below:

PART 756—INDIAN TRIBE ABANDONED MINE LAND RECLAMATION PROGRAMS

1. The authority citation for part 756 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq. and Pub. L. 100-71.

2. Section 756.20 is amended by adding paragraph (a) and adding and reserving paragraph (b) to read as follows:

§ 756.20

Approval of amendments to the Crow Tribe's abandoned mine land reclamation plan.

* * * * *

(a) The Director concurs with the Crow Tribe's May 29, 2007, certification of completion of coal reclamation effective April 1, 2008:

Original amendment submission date	Date of final publication	Citation/description
May 29, 2007	April 1, 2008	756.20 Certification of Completion.

(b) [Reserved]