02-15374. Abandoned Mine Land Reclamation Notices

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Proposed rule.

SUMMARY:

Currently regulations require us to publish a Federal Register notice whenever we receive a State or tribal application to build public facilities using Abandoned Mine Land Reclamation Funds. We propose to change this requirement so that we would publish a notice only when the Director of the Office of Surface Mining (OSM) finds it necessary. We also propose to correct errors in four cross-references.

DATES:

Written comments: We will accept written comments on the proposed rule until 5 p.m., Eastern Time, on August 19, 2002.

Public hearings: Upon request, we will hold a public hearing on the proposed rule at a date, time and location to be announced in the Federal Register before the hearing. We will accept requests for a public hearing until 5 p.m., Eastern Time, on July 10, 2002.

ADDRESSES:

If you wish to comment, you may submit your comments on this proposed rule by one of two methods. You may mail or hand carry comments to the Office of Surface Mining Reclamation and Enforcement, Administrative Record, Room 101, 1951 Constitution Avenue, NW., Washington, DC 20240.

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 before the hearing. Any disabled 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:

Danny Lytton, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue NW., MS-121-SIB, Washington DC 20240; Telephone: [phone].

SUPPLEMENTARY INFORMATION:

I. Discussion of Proposed Rule

II. How Do I Submit Comments on the Proposed Rule?

III. Procedural Matters and Required Determinations

I. Discussion of the Proposed Rule

We are revising our regulations at 30 CFR 875.15(f) which govern public notification for certain non-coal reclamation projects funded by the AML Reclamation Fund under 30 CFR part 875. There are 23 States and 3 Indian tribes with approved AML programs. Only 6 of these programs are currently certified for non-coal reclamation projects, i.e., all of their existing known coal-related reclamation objectives have been completed. They are the programs of the States of Louisiana, Montana, Texas and Wyoming, and the Hopi Tribe and Navajo Nation. Only these 6 programs are, therefore, eligible for 30 CFR part 875 AML funding of non-coal reclamation projects.

The current regulations at 30 CFR 875.15(f) require that the Director publish a Federal Register notice announcing the receipt of, and seeking comments on, AML grant applications for non-coal reclamation projects submitted by a governor of a State or the equivalent head of an Indian tribe. The grant applications are requests for funds for the construction of specific public facilities related to the coal or minerals industry in communities impacted by coal or other mineral mining and processing practices. Such construction projects are authorized by section 411(f) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) after all coal-related reclamation objectives have been or are in the process of being completed. For the reasons set forth below, we are proposing to make the Director's Federal Register notice requirement a discretionary action.

The current regulatory scheme for 30 CFR part 875 provides for a level of public notice that, in most cases, makes the additional Federal Register notice of § 875.15(f) redundant. For example, § 875.13 provides for a public notice certification process by the State or Indian tribe that it has completed all existing known coal-related reclamation objectives for eligible lands or waters. Section 875.15(d) then allows the State or Indian tribe to submit to the Director a grant application for AML funding of specific non-coal projects. Section 875.15(e) details the information required in the grant application. In particular, paragraph (e)(7) requires the Director to conduct an analysis and review of the procedures used by the State or Indian tribe to notify and involve the public in the funding request and a copy of all comments received and their resolution by the State or Indian tribe. The 1994 preamble discussion of the § 875.15(e) grant information requirements noted that they were intended to assist the Director in determining whether a “need” exists and whether the public had been “fully appraised and informed” of the grant request (May 31, 1994, 59 FR 28163).

Irrespective of the outcome of the Director's § 875.15(e) public notice determination, § 875.15(f) next requires that the Director prepare a Federal Register notice of the State's or Indian tribe's grant application. Following receipt and evaluation of comments generated by that Federal Register notice, the Director is to make his/her decision on the grant application. It is not clear why the 1994 rule required the additional § 875.15(f) Federal Register notice of the grant application as there was no preamble discussion of this provision and the enabling statute for § 875.15 does not require the additional notice. (May 31, 1994, 59 FR 28163-4), 30 U.S.C. 1240(f).

Accordingly, we are proposing to make § 875.15(f)'s required Federal Register notice discretionary. We believe that if the Director can determine from the § 875.15(e)(7) information previously submitted by the State or Indian tribe in its grant application that the public has already been “fully appraised and informed” of the grant request, a subsequent § 875.15(f) required Federal Register notice covering the same ground would not meaningfully add to the Director's decision-making process. Conversely, if the Director cannot determine from the (e)(7) information submitted by the State or Indian tribe that the public has been “fully appraised and informed” of the grant request, the Director should prepare a § 875.15(f) Federal Register notice of the grant request so as to assure adequate public notice. The proposed rule would give the Director the option of requiring an additional Federal Register notice dependent on the extent of prior (e)(7) public notice. This would seem to be a reasonable course. It would assure adequate public notice of the State's or Indian tribe's grant request (with or without a Federal Register notice) while avoiding the delay and expense of an unnecessary Federal Register notice. We are, therefore, proposing to revise § 875.15(f) by inserting the words “if necessary to ensure adequate public notification.” Proposed § 875.15(f), with revised inserts italicized, will read as follows:

After review of the information contained in the application, the Director shall, if necessary to ensure adequate public notification, prepare a Federal Register notice regarding the State's or Indian tribe's submission and provide for public comment. After receipt and evaluation of any comments and a determination that the funding meets the requirements of the regulations in this part and is in the best interest of the State or Indian tribe AML program, the Director shall approve the request for funding the activity or construction at a cost commensurate with its benefits towards achieving the purposes of the Surface Mining Control and Reclamation Act of 1977.

There are several other practical reasons to reject the current rule's § 875.15(f) requirement of a Federal Register notice and to adopt the proposed rule's more flexible approach. The first is that, since the rule was initially promulgated seven years ago, there have been no comments submitted in response to any of the required Federal Register notices published by the Director. This fact was brought to light as a result of an inquiry from several of the States and Indian tribes attending the August 2001 AML Conference held in Athens, Ohio, who questioned the need for the Director's required § 875.15(f) Federal Register notice. OSM subsequently reviewed its own records and discovered that it had never received any public comments to the required § 875.15(f) Federal Register notices. The agency then polled the 6 eligible AML programs on the public response to their own subsection (e)(7) public notice efforts. All of the programs questioned the need for the required § 875.15(f) Federal Register notice and reported a general lack of public response to their individual (e)(7) public notice efforts. Wyoming's, which is by far the largest of the AML programs certified under § 875.13 and which has funded thirty-six (36) § 875.15 public facilities projects with AML grant funds, report was of particular note. Although Wyoming's AML program provides for extensive local public notice and a public hearing on all proposed § 875.15 projects, that State reported that “even these local opportunities for comment elicit little if any response from those directly impacted by the project.” This consistent lack of local response to local notice from the Wyoming AML program regarding prospective § 875.15 projects underscores the fact that the current rule's requirement for additional Federal Register notice, while helpful in theory, has not produced meaningful public notice and comment.

OSM's polling of the 6 States and Indian tribes brought to light additional reasons not to retain the current rule's Federal Register notice requirement. The Navajo Nation, which has a substantial number of applications ready for processing as soon as its revised AML plan is approved, strongly opposes the current rule's required Federal Register notice because of its own internal AML notice procedures. By tribal law, the Navajo Nation has had to hold public meetings for each of its 100 or more individual political units whenever AML funds are to be used anywhere in their tribal boundaries for the construction of public facilities. The current rule's § 875.15(f) required Federal Register notice would, therefore, trigger a redundant, time-consuming round of tribal meetings on the very same projects.

Another reason given by some of the States and Indian tribes for opposing the continuance of the § 875.15(f) required Federal Register notice is that for programs with shorter construction seasons like those of Montana and Wyoming, the required Federal Register notice adds 45 to 60 days to the project approval process. These additional 45 to 60 days can push completion of a funded public facility well into the next construction season.

In light of the above, we are proposing to remove the requirement in § 875.15(f) that the Director always publish a Federal Register notice informing the public of the grant application. Instead, the Director would retain the option of publishing such notice if his/her analysis and review of the notice information required under § 875.15(e)(7) indicated that inadequate procedures were used to notify and involve the public in the funding request. In this way, the public will be assured that it has been fully apprised of the grant application while also being protected from the delay and expense of an unnecessary Federal Register notice.

Technical Corrections

In addition to the above, we are also revising our regulations at §§ 875.15(d) and (e) to correct errors in four existing cross-references. In § 875.15(d), we are changing the cross references from paragraphs (a), (d), and (e) to paragraphs (b), (e), and (f), respectively. In § 875.15(e), we are changing the cross reference from paragraph (c) to paragraph (d). These revisions to the cross references will not result in any substantive changes in the application of our regulations.

Finally, we have rewritten “ 875.15(f) in plain language format by incorporating numbered paragraphs to make the section more reader friendly. No substantive changes resulted from using the plain language format.

How Will This Rule Affect State and Indian Programs?

Following publication of a final rule, we evaluate the State and Indian programs approved under section 405 of SMCRA to determine any changes in those programs that may be necessary. When we determine that a particular State program provision should be amended, the particular State will be notified in accordance with the provisions of 30 CFR 732.17. On the basis of the proposed rule, we have made a preliminary determination that no program revisions will be required.

II. How Do I Submit Comments on the Proposed Rule?

Written Comments: If you submit written comments on the proposed rule during the 60-day comment period, they should be specific, should be confined to issues pertinent to the notice, and should explain the reason for any recommended change(s). Where practicable, you should submit three copies of your comments. Comments delivered to an address other than those listed above (see ADDRESSES) may not be considered or included in the Administrative Record.

Availability of Comments: Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours at the OSM Administrative Record Room (see ADDRESSES). Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent=s identity, to the extent allowed by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not 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.

Public hearings: 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 in a hearing should inform Mr. Danny Lytton (see FOR FURTHER INFORMATION CONTACT), either orally or in writing by 5:00 p.m., Eastern time, on July 10, 2002. If no one has contacted Mr. Lytton to express an interest in participating in a hearing 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.

The public hearing will continue on the specified date until all persons scheduled to speak have been heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after all persons scheduled to speak and persons present in the audience who wish to speak have been heard. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who testifies at a public hearing provide us with a written copy of his or her testimony.

III. Procedural Matters and Required Determinations

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.

a. 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 elimination of the mandatory requirement to publish a Federal Register notice is not expected to have an adverse economic impact on States and Indian tribes. It may in fact reduce constructions costs in northern climates by eliminating delays.

b. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

c. This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

d. This rule does not raise novel legal or policy issues.

Executive Order 13211—Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

This rule is not considered a Asignificant energy action” under Executive Order 13211. The elimination of the mandatory requirement to publish a Federal Register notice will not have a significant affect on the supply, distribution, or use of energy. The elimination of the mandatory requirement may reduce constructions costs in northern climates by eliminating delays.

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.). As previously stated, the elimination of the requirement for a mandatory Federal Register notice is not expected to have an adverse economic impact. Further, 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.

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:

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

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, 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 for the reasons stated above.

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, Tribal, or local governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1534) is not required.

Executive Order 12630—Takings

In accordance with Executive Order 12630, the rule does not have significant takings implications.

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.

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.

Paperwork Reduction Act

This rule does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act to the Office of Management and Budget is not required.

National Environmental Policy Act

OSM has reviewed this rule and determined that it is categorically excluded from the National Environmental Policy Act process in accordance with the Departmental Manual 516 DM 2, Appendix 1.10.

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 “§ ” and a numbered heading; for example, § 875.15.)? (5) Is the description of the proposed rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the proposed rule? (6) 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 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: [e-mail].

List of Subjects in 30 CFR Part 875

• Grant program—natural resources
• Indian lands
• Reclamation
• Surface mining
• Underground mining

Dated: May 16, 2002.

Rebecca W. Watson,

Assistant Secretary, Land and Minerals Management.

Accordingly, we propose to amend 30 CFR part 875 as set forth below.

PART 875—NONCOAL RECLAMATION

1. The authority citation for part 875 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

2. Amend § 875.15 as follows:

a. In paragraph (d), remove the phrases “paragraph (a),” “paragraph (d),” and “paragraph (e)” and in their place add “paragraph (b),” “paragraph (e),” and “paragraph (f),” respectively.

b. In paragraph (e), remove the phrase “paragraph (c)” and add “paragraph (d).”

c. Revise paragraph (f) to read as follows.

875.15

Reclamation priorities for noncoal program.

* * * * *

(f) After review of the information contained in the application, the Director will, if necessary to ensure adequate public notification, prepare a Federal Register notice regarding the State's or Indian Tribe's submission and provide for public comment. The Director will then:

(1) Evaluate any comments received;

(2) Determine whether the funding meets the requirements of this part;

(3) Determine whether the funding is in the best interest of the State or Indian tribe AML program;

(4) If the determinations under paragraphs (f)(2) and (f)(3) of this section are positive, approve the request for funding the activity or construction; and

(5) Approve funding under paragraph (f)(4) of this section only at a cost commensurate with its benefits towards achieving the purposes of the Surface Mining Control and Reclamation Act of 1977.