[Federal Register Volume 59, Number 162 (Tuesday, August 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20514]
[[Page Unknown]]
[Federal Register: August 23, 1994]
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Part III
Department of the Interior
_______________________________________________________________________
Bureau of Indian Affairs
25 CFR Parts 200 and 216
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 710, et al.
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Surface Coal Mining and Reclamation Operations; Initial Regulatory
Program for Indian Lands; Final Rule
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Parts 200 and 216
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 710, 715, 716, 717, and 750
RIN 1029-AB65
Surface Coal Mining and Reclamation Operations; Initial
Regulatory Program for Indian Lands
AGENCIES: Bureau of Indian Affairs and Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Indian Affairs (BIA) and the Office of Surface
Mining Reclamation and Enforcement (OSM) are amending their regulations
to remove the current initial program for Indian lands and revise the
existing initial program for non-Indian lands to apply to Indian lands.
These amendments enable operators on Indian lands initial program
sites, in appropriate circumstances, to reclaim to the latest technical
and environmental standards of the permanent program, eliminate
inconsistencies between the Indian and non-Indian lands initial
programs, ensure equal treatment of operators on Indian and non-Indian
lands, and clarify regulatory and compliance ambiguities. This rule
also amends the permanent program for Indian lands to reflect the
foregoing amendments and revises related information collection
provisions.
EFFECTIVE DATE: September 22, 1994.
FOR FURTHER INFORMATION CONTACT:
Billie E. Clark, Jr., Branch of Federal and Indian Programs, Office of
Surface Mining Reclamation and Enforcement, U.S. Department of the
Interior, Brooks Towers, 1020 15th Street, Denver, CO 80202; Telephone:
303-844-2829.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion of Final Rule
III. Response to Comments
IV. Procedural Matters
I. Background
A. The Proposed Rule
On March 22, 1993, the Bureau of Indian Affairs (BIA) and the
Office of Surface Mining Reclamation and Enforcement (OSM) of the U.S.
Department of the Interior published in the Federal Register at 58 FR
15404 a proposed rule to remove the Indian lands initial program at 25
CFR Part 216, Subpart B, and amend the non-Indian lands initial program
at 30 CFR Chapter VII, Subchapter B, to cover Indian lands. OSM also
proposed to make conforming revisions in the Indian lands permanent
program and to revise related information collection provisions.
In the notice, OSM and BIA stated that the proposed rule would,
among other things:
(1) Require operators on initial program Indian lands to adhere to
the initial program performance standards at 30 CFR Chapter VII,
Subchapter B;
(2) Allow such operators to avail themselves of 30 CFR 710.11(e),
under which they could choose to meet either the initial program
performance standards at 30 CFR Chapter VII, Subchapter B, or
counterpart permanent program performance standards at 30 CFR Chapter
VII, Subchapter K;
(3) Thereby allow such operators to reclaim to the latest technical
and environmental standards of the permanent program; and
(4) Eliminate inconsistencies between the Indian and non-Indian
lands initial programs, ensure equal treatment of surface coal mine
operators on Indian and non-Indian lands, and clarify regulatory and
compliance ambiguities.
The proposed rule provided a public comment period and offered to
hold a public hearing. The public comment period closed on April 21,
1993. Two requests for a public hearing were received but later
withdrawn, and no hearing was held.
B. History of Affected Provisions
The Surface Mining Control and Reclamation Act of 1977 (SMCRA or
the Act), Pub. L. 95-87, as amended, 30 U.S.C. Secs. 1201-1328,
provides for initial and permanent programs for the regulation by the
Secretary of the Interior (the Secretary) of surface coal mining and
reclamation operations on Indian lands. The Indian lands initial
program is codified in the Federal regulations at 25 CFR Part 216,
Subpart B (42 FR 63395, December 16, 1977 and 47 FR 13326, March 30,
1982). The Indian lands permanent program is codified at 30 CFR Part
750 (49 FR 38462, September 28, 1984). SMCRA also provides for initial
and permanent programs for the regulation of surface coal mining and
reclamation operations on non-Indian lands. The initial program for
non-Indian lands is codified in the Federal regulations at 30 CFR
Chapter VII, Subchapter B (42 FR 62639, December 13, 1977). Permanent
program performance standards for non-Indian lands are codified at 30
CFR Chapter VII, Subchapter K.
As first promulgated, the performance standards of the Indian lands
initial program at 25 CFR Part 216, Subpart B, were nearly identical to
those of the non-Indian lands initial program at 30 CFR Parts 715 and
716. However, there were differences. The most important difference was
that the Indian lands initial program included provisions at 25 CFR
216.112 through 216.114 for tribal involvement in inspection,
enforcement, and civil penalty proceedings. Also, the Indian lands
initial program did not include provisions, as found in the non-Indian
lands initial program at 30 CFR 715.19, governing the use of
explosives. Furthermore, except for the provisions governing steep-
slope mining at 25 CFR 216.111, the Indian lands initial program did
not include special performance standards comparable to those for non-
Indian lands at 30 CFR Part 716.
On September 28, 1984 (49 FR 38462), OSM published a rule that,
among other things, amended the Indian lands initial program to remove
the tribal involvement provisions at 25 CFR 216.112 through 216.114. In
the preamble to that rule, OSM stated that those provisions were
superseded by the permanent program provisions at 30 CFR Parts 842,
843, and 845. Specific provisions to protect Indian interests were also
included in 30 CFR Part 750. See e.g. 30 CFR 750.18. OSM determined
that having one set of uniform rules made administration of the Act
simpler and more efficient and that the change would cause no undue
hardship on non-complying operators (49 FR 38464, September 28, 1984).
Hence, the major reason for having separate Indian and non-Indian lands
initial programs was eliminated.
On February 14, 1991 (56 FR 6224), OSM amended the non-Indian lands
initial program to add a new provision--namely, 30 CFR 710.11(e)--that
allows operators on non-Indian lands to meet any counterpart permanent
program performance standard at 30 CFR Chapter VII, Subchapter K, in
lieu of the initial program performance standard at 30 CFR Chapter VII,
Subchapter B. Changes to the Indian lands initial program were deemed
to be outside the scope of that rulemaking (56 FR 6224, 6226, February
14, 1991). Thus, while operators of non-Indian lands had the option to
meet counterpart permanent program standards in lieu of initial program
standards, operators on Indian lands did not have that option.
Although 30 CFR 710.11(e) did not apply to initial program Indian
lands, the basis and purpose for the promulgation of that provision are
applicable to Indian lands. In explaining that new provision (56 FR
6224, February 14, 1991), OSM stated:
The Permanent Program rules [require] the latest technical and
environmental standards for interpretation of the Act and are the
result of more than ten years of experience in implementing the Act.
They include many program revisions mandated by courts. However, in
cases where the Initial Program performance standards continue to
apply, Regulatory Authorities must require operators to comply with all
of the earlier standards, even when compliance with Permanent Program
standards would ensure implementation of [the Act] or would result in
reclamation superior to that which would be achieved under the Initial
Program standards.
OSM then described five examples of initial program performance
standards that were outdated or for which compliance was impractical.
Most of those examples are equally germane to Indian lands.
The Indian lands initial program applies to any person who conducts
surface coal mining and reclamation operations on Indian lands on or
after December 16, 1977. Although the Indian lands permanent program
has been in effect since September 28, 1984, operators on all initial
program sites must continue to comply with the Indian lands initial
program performance standards, even though compliance with counterpart
permanent program performance standards would ensure implementation of
the Act and could result in superior reclamation. At the present time,
there is only one interim program mine in operation on Indian lands.
Interim program sites include sites at which surface coal mining
operations were complete prior to June 28, 1985 (eight months following
the effective date of the Indian lands permanent program) and to
surface coal mining operations operating under an interim authorization
pending issuance of a permanent program permit (See 30 CFR 750.11(c)).
This rulemaking affects only such sites.
II. Discussion of Final Rule
This rule moves the Indian lands initial program regulations at 25
CFR Part 216.100(b), into a new section, but would not change its
substance. Part 216, Subpart B would be deleted as proposed. The rule
also amends the permanent program for Indian lands at 30 CFR 750.16 to
reflect the foregoing changes. The rule also amends the information
collection statements at 30 CFR 716.10, 717.10, and 750.10.
These amendments, among other things, allow operators on Indian
lands initial program sites to avail themselves of the provisions of 30
CFR 710.11(e), under which operators may choose to meet either the
initial program performance standards at 30 CFR Chapter VII, Subchapter
B, or counterpart permanent program performance standards at 30 CFR
Chapter VII, Subchapter K.
Removal of 25 CFR Part 216, Subpart B
25 CFR section 216.100(b) provides that the requirements of 25 CFR
part 216, Subpart B shall be incorporated in all existing and new
contracts entered into for coal mining on Indian lands. Although OSM
proposed to delete 25 CFR Part 216, Subpart B, OSM has decided to
retain the contents of section 216.100(b) by redesignating the section
as section 200.12 Contract Term Incorporation, and making a technical
revision to reflect the fact that the requirements of Subpart B have
been replaced by 30 CFR Part 750. This change reflects the fact that
the requirement of 25 CFR section 216.100(b) would not be addressed by
the amendments to 30 CFR Chapter VII. Accordingly, the existing
requirement of 25 CFR section 216.100(b) is being redesignated without
substantive change.
As discussed above, prior to this rule 25 CFR Part 216, Subpart B,
comprised the Indian lands initial program. Although 25 CFR Part 216,
Subpart B, appears in the BIA regulations at 25 CFR Chapter I, the OSM
Director is responsible for administering the Indian lands initial
program under the general guidance of the Assistant Secretary for Land
and Minerals Management.
The performance standards of 30 CFR Chapter VII, Subchapter B, do
not place any additional unreasonable burdens on operators on Indian
lands initial program sites about and beyond those found in 25 CFR Part
216, Subpart B. The changes will actually give OSM and operators more
flexibility while ensuring compliance with the Act.
Amendments to 30 CFR
As discussed below, the amendments to 30 CFR 710.11(b), 715.11, and
750.16 make the non-Indian lands initial program at 30 CFR Chapter VII,
Subchapter B, applicable to Indian lands.
Section 710.11(b)--Applicability
The ``Applicability'' provisions at 30 CFR 710.11(b) are amended to
make the initial program regulations at 30 CFR Chapter VII, Subchapter
B, applicable to Indian lands. Specifically, it requires any person who
conducts surface coal mining and reclamation operations on Indian lands
on or after December 16, 1977, in accordance with 30 CFR 750.11(c), to
meet the performance standards of 30 CFR Chapter VII, Subchapter B.
This change would, by implication, amend any provision of 30 CFR
Chapter VII, Subchapter B, containing a reference to the State as the
regulatory authority, to the extent that such reference would be
construed as also referring to OSM as the regulatory authority on
Indian lands.
This change affects operators on Indian lands initial program sites
in three principal ways:
a. Permanent Program Performance Standards in Lieu of Initial Program
Performance Standards
The change to 30 CFR 710.11(b) allows operators on Indian lands
initial program sites to avail themselves of the provisions of 30 CFR
710.11(e), under which they may choose to meet either the initial
program performance standards at 30 CFR Chapter VII, Subchapter B, or
counterpart permanent program performance standards at 30 CFR Chapter
VII, Subchapter K. Prior to this rulemaking, operators on non-Indian
lands were able to avail themselves of section 710.11(e) while
operators on Indian lands were not. With this rulemaking, operators on
Indian lands may now avail themselves of section 710.11(e). This
resolves an inequity. Without the change to section 710.11(b),
operators on Indian lands initial program sites could be placed at a
competitive and economic disadvantage when compared with operators on
non-Indian land, because of performance standards that have been
determined to be unnecessary for implementation of SMCRA. Thus, the
change to section 710.11(b) eliminates inconsistencies between the
current Indian and non-Indian lands initial programs and ensures equal
treatment of operators on Indian and non-Indian lands.
This rulemaking will have no cumulative negative environmental
effect. Allowing operators to choose compliance with the permanent
program performance standards will ensure compliance with the Act. The
permanent program performance standards represent the latest technical
and environmental standards for interpretation of the Act, and are the
result of more than fifteen years of experience in implementing the
Act. The permanent program performance standards also include revisions
mandated by courts. Hence, the Act will be complied with and
environmental impacts will be fully analyzed and considered before
final decisions are reached.
b. Frequency of Inspecting Ponds That Do Not Meet Mine Safety and
Health Administration Criteria
The Indian lands initial program at 25 CFR 216.108(e) required that
ponds not meeting the size or other criteria of the Mine Safety and
Health Administration regulation at 30 CFR 77.216(a) be examined on a
weekly basis. In comparison, the non-Indian lands initial program at 30
CFR 715.17(e)(20) allows the regulatory authority to approve a
reduction in the number of examinations of these ponds to four times
per year. The change to 30 CFR 710.11(b) makes 30 CFR 715.17(e)(20)
applicable to Indian lands and, consequently, allows OSM, the
regulatory authority for Indian lands, to approve a reduction in the
number of examinations of these ponds to four times per year. This
change eliminates a competitive and economic disadvantage placed on
Indian land operators by reducing the cost to the operator associated
with such examinations.
c. Use of Explosives
Section 710(c) of the Act does not specifically require operators
on Indian lands initial program sites to comply with subsection
515(b)(15) of the Act concerning the use of explosives. Therefore, the
Indian lands initial program promulgated on December 16, 1977 (42 FR
63395) did not include provisions governing the use of explosives. In
comparison, section 502(c) of the Act requires operators on non-Indian
lands initial program sites to comply with subsection 515(b)(15) of the
Act. Consequently, the non-Indian lands initial program at 30 CFR
715.19 includes provisions governing the use of explosives.
By this rulemaking, 30 CFR 710.11(b) is modified and the provisions
at 30 CFR 715.19 governing the use of explosives are made applicable to
Indian lands initial program sites. Section 710(d) of the Act, however,
requires surface coal mine operators on Indian lands, on which such
operations are conducted on and after thirty months from August 3,
1977, to comply with all of subsection 515 of the Act, including
subsection 515(b)(15). Furthermore, section 710(d) of the Act requires
that after the applicable thirty month period, all of the requirements
of subsection 515 of the Act must be incorporated in existing and new
leases issued for coal on Indian lands. The changes to 30 CFR 710.11(b)
in this rulemaking are effective after the applicable 30-month period
when operators on Indian lands must comply with all of the requirements
of section 515 of the Act, including those concerning explosives.
Therefore, 30 CFR 715.19 is made applicable to Indian lands.
Section 715.11--General Obligations
Part 715 of 30 CFR contains general initial program performance
standards and includes regulations governing restoration of disturbed
areas to suitable postmining land use, backfilling and grading, off-
site disposal of spoil and waste materials, topsoil handling,
protection of the hydrologic system, construction, inspection, and
maintenance of dams, use of explosives, and revegetation. The focus of
30 CFR Part 715 is on lands regulated by the States. The ``General
obligations'' section of this part is modified by adding a new
paragraph to clarify that the general performance standards of this
part are also applicable to Indian lands. Specifically, paragraph (d)
is added to 30 CFR 715.11. OSM had proposed to add a new subparagraph
30 CFR 715.11(d)(1) which specifically clarified that OSM is the
regulatory authority for surface coal mining and reclamation operations
conducted on Indian lands initial program sites. This has been OSM's
position for a number of years (See, e.g., OSM's preambles on September
28, 1984, and May 22, 1989 (54 FR 22182).). OSM has decided not to
include this provision in the final rule because it is not necessary.
Although such a clarification would have been useful when this program
was codified in 25 CFR, such a clarification is unnecessary once the
program is codified under 30 CFR, because the provisions of 30 CFR
already define ``regulatory authority'' and specify what entities
perform that role. Thus, the decision not to adopt this provision is
not intended to be a substantive change from the existing rule or from
the proposed rule. The issue of who may act as the regulatory authority
under SMCRA on Indian lands is currently the subject of litigation
[Hopi Indian Tribe v. Secretary of the Interior, No. 89-2055-JGP
(D.D.C.); Navajo Nation v. Babbitt, No. 89-2066-JGP (D.D.C.)
(consolidated)]. OSM anticipates the issue will be resolved in the
context of that litigation.
OSM proposed a new subparagraph 30 CFR 715.11(d)(2). This provision
is being renumbered and adopted. 30 CFR 715.11(d)(1). This subparagraph
establishes minimum requirements for mine maps. The maps must show as
of December 16, 1977, the lands where coal had not yet been removed,
and the lands and structures that had been used or disturbed by a
surface coal mining operation. This provision essentially duplicates 25
CFR 216.102(b). This is necessary since the effective date of the
initial program for Indian lands is December 16, 1977, as opposed to
May 3, 1978, for non-Indian lands, and operators still must supply the
subject mine maps to OSM.
Subpart B of 25 CFR Part 216 generally requires coordination and
consultation with tribes, much the same as 30 CFR Part 715 requires
coordination and consultation with States and local governments. Since
Subpart B of 25 CFR Part 216 is removed under this rulemaking, OSM
proposed to add a provision at 30 CFR 715.11(d)(3) that requires
notification of and consultation with tribal governments to the same
extent as is required for State and local governments. The provision is
being renumbered and adopted as 30 CFR 715.11(d). This provision
reflects the important role of tribal governments in the initial
program for Indian lands.
The last sentence of 30 CFR 715.11(d)(2) requires OSM to coordinate
with the BIA with respect to special requirements relating to the
protection of noncoal resources and the Bureau of Land Management (BLM)
with respect to the requirements relating to the development,
production and recovery of mineral resources. This sentence has been
added to the final rulemaking to specifically recognize the
responsibilities that the BIA and the BLM have on Indian lands. It
essentially establishes the same requirement for the initial program as
exists in 30 CFR 750.6 for the permanent program.
Sections 716.1 Through 716.10--Special Performance Standards
30 CFR Chapter VII, Subchapter B, includes provisions governing
general obligations (section 716.1), steep-slope mining (section
716.2), mountain-top removal (section 716.3), special bituminous coal
mines (section 716.4), anthracite coal mines (section 716.5), coal
mines in Alaska (section 716.6), prime farmland (section 716.7), and
information collection (section 716.10). The only counterpart to these
regulations under 25 CFR Part 216, Subpart B, was the regulations
governing steep-slope mining (section 216.111), which duplicates only a
portion of the regulations covering steep-slope mining at 30 CFR 716.2.
Under the changes made today, the additional requirements of 30 CFR
Chapter VII, Subchapter B, also govern operations on Indian lands
initial program sites, as applicable.
Section 750.16--Performance Standards
30 CFR 750.16 is modified to reflect that operators on Indian lands
initial program site must comply with the provisions of 30 CFR Chapter
VII, Subchapter B. This is necessary since 25 CFR Part 216, Subpart B
is removed by this rulemaking.
III. Response to Comments
Comments on the proposed rule were received from four entities: two
tribal governments and two members of the coal industry. The proposal
to allow operators to meet counterpart permanent program performance
standards in lieu of meeting initial program standards was generally
supported by all of the commenters. One commenter said that it favored
the proposed rule since the rule would place operators on Indian lands
on the same footing as operators on non-Indian lands. However, some
commenters suggested that the final rule be modified to reflect
specific concerns. Responses to comments on specific issues follow.
A. Combining Initial and Permanent Program Performance Standards
As provided in 30 CFR 710.11(e), for surface coal mining and
reclamation operations on Indian lands initial program sites this rule
allows operators to meet either the initial or the counterpart
permanent program performance standards. One commenter asked whether an
operator on Indian lands initial program sites could, for a performance
standard applicable to a specific activity, meet part of the initial
program performance standard and, for the remainder of that standard,
meet the permanent program performance standard.
For example, under this rule, Indian lands initial program
operations would be subject to the initial program performance standard
at 30 CFR 715.19 governing the use of explosives. The counterpart
permanent program performance standard is found at 30 CFR 816.61
through 816.68. The requirements of that portion of the initial program
standard at 30 CFR 715.19(c) (1) and (2) are different than the
counterpart requirements at 30 CFR 816.64(c) (2) and (3) about what an
operator must identify in a blasting schedule. The commenter asked
whether an operator could meet the permanent program requirements for
those two subsections but meet the initial program requirements for the
remainder of the performance standard.
The answer is no. While 30 CFR 710.11(e) allows an operator to meet
either the initial or the counterpart permanent program performance
standard, the operator may not pick and choose selective portions of a
comprehensive standard applicable to a particular activity. In the
commenter's example, 30 CFR 715.19 contains a comprehensive performance
standard governing the use of explosives. Consequently, under 30 CFR
710.11(e), an operator could choose to meet all of the initial program
performance standard at section 715.19 or, in the alternative, all of
the permanent program performance standard governing the use of
explosives at 30 CFR 816.61 through 816.68.
The approach suggested by the commenter would be impracticable to
administer and could result in incomplete compliance with the minimum
requirements of both the initial and permanent program performance
standards. Each operator who elects to meet a permanent program
performance standard in lieu of an initial program standard, is
responsible for initially determining the extent of the counterpart
initial and permanent program standards. OSM will in all cases have the
final say regarding the validity of that determination.
B. Effect of Rule on Previously Approved Activities
One commenter was concerned that this rule would necessitate
additional review and approval of activities that previously were
approved under 25 CFR Part 216, Subpart B. The commenter's concern is
unfounded. This rule does not negate any previous approvals given by
OSM under the initial program.
One commenter suggested that this rulemaking will lower standards
on initial program sites, since some of the permanent program
performance standards are less stringent than the initial program
performance standards. The commenter stated that the rule change
appears to be only for the convenience of the operators and that alone
is not a sufficient reason to lower the standards. Recognizing that
both programs meet the requirements of the Act, the commenter was also
concerned that the rulemaking may result in a cumulative negative
effect on tribal lands. The commenter requested that the rule be
modified to require OSM to make a finding that compliance with the
permanent program performance standards, as opposed to the initial
program performance standards, will have no negative effect and/or will
not negatively impact the overall environment.
OSM disagrees. This rulemaking is expected to have no cumulative
negative effect on tribal lands, for several reasons. Allowing
operators to choose compliance with the permanent program performance
standards will not be a problem because such compliance would
constitute full compliance with the Act. The permanent program
performance standards represent the latest technical and environmental
standards for interpretation of the Act, and are the result of more
than fifteen years of experience in implementing the Act. The permanent
program performance standards also include revisions mandated by
courts. Operators opting to meet the permanent program standards would
be meeting requirements that satisfy the Act. OSM's approval would be
required if on an initial program site an operator wished to initiate
under permanent program standards an activity that under the initial
program requires regulatory authority approval, or if the operator
wishes to apply permanent program standards to an activity approved
under the initial program; and OSM would be required to ensure
compliance with the Act and the National Environmental Policy Act of
1969 (NEPA). Hence, the Act will be complied with and environmental
impacts will be fully analyzed and considered before a final decision
is reached.
C. OSM Coordination With Other Agencies
One commenter opposed allowing operators the right to choose
permanent program performance standards over initial program
performance standards without a tribe being given the opportunity to
comment on and/or oppose such action. The commenter stated that the
government must support the Federal policy of self-determination for
tribes. Therefore, a tribe should be consulted and informed of any and
all consequences of operators choosing initial program performance
standards over permanent program performance standards. The commenter
also stated that the tribes were not being treated as an equal to the
States. A State, as the regulatory authority under the Act, can choose
not to adopt this rule change in its program but a tribe, since OSM is
the regulatory authority under the Act, does not have this same option.
In addition, a State could adopt a more restrictive rule that would
require operators to follow notice and consultation procedures before
using a permanent program performance standards on an initial program
site. Hence, the commenter requested that the rule provide notice and
consultation with tribes and that the operator on Indian lands initial
program sites obtain prior approval from the tribes before using a
permanent program performance standard in lieu of an initial program
performance standard.
OSM agrees that the tribes will not be able to act as State
regulatory authorities may. This is consistent with SMCRA section 710,
under which OSM is the regulatory authority for Indian lands. Under
section 710, tribes are not authorized to act as the regulatory
authority on Indian lands, so tribes may not take the same actions as
may be taken by State regulatory authorities under State primacy.
However, OSM disagrees with the commenter's concerns about
consultation with tribes. As noted above, if an operator on an Indian
lands initial program site chooses to utilize a permanent program
performance standard in lieu of an initial program performance
standard, and prior approval is required under the initial program for
the activity or the operator is proposing modification of a previously
approved activity, then the operator must obtain prior approval from
OSM prior to conducting such activity. Prior to OSM taking action,
tribes as well as other agencies will be consulted with as provided for
under this final rule at 30 CFR 715.11(d)(2). Thus, the final rule
requires appropriate consultation with tribes.
One commenter suggested that 30 CFR 750.6(a)(3) be amended to give
tribal authorities the option of participating in inspections conducted
by OSM in order to assist the tribes in their development of regulatory
expertise and to prepare the tribes to assume enforcement authority
once appropriate legislation is enacted.
In response to this comment, OSM states that the development of
tribal regulatory expertise is beyond the scope of this rulemaking.
However, it should be noted that as a routine practice OSM invites
tribal and other agency officials to accompany inspectors during all
Indian mine inspections.
One commenter requested that OSM consult directly with the tribal
governments instead of going through the BIA. The commenter suggested
that 30 CFR 750.6(d) be modified to reflect this request. The same
commenter stated that tribal governments should be consulted in the
same manner as State regulatory agencies, whether or not the tribes
have their own regulatory programs under SMCRA.
In response to this comment, OSM states that modifying coordination
procedures for the permanent program is beyond the scope of this
rulemaking. However, it should be recognized that OSM consults directly
with tribal governments concerning permanent program matters as
required at 30 CFR 750.6(a)(4). In order to ensure that tribal concerns
are fully addressed OSM consults with tribal governments on all
permitting actions.
D. Tribal and State Laws
One commenter stated that tribes may undertake their own regulatory
program, independent of SMCRA. The same commenter proposed that 30 CFR
715.11(a) be amended to require compliance with tribal laws and
regulations for coal mining operations on Indian lands and that the
provisions of 30 CFR Part 715 that refer to State and local agencies be
amended to include tribal agencies. The commenter further requested
that the rules reflect that if there is a conflict between State or
local laws and tribal laws, with regard to surface coal mining and
reclamation operations on Indian lands, that tribal law should control.
In response to this comment, OSM notes that this rulemaking neither
addresses the laws and regulatory programs that tribal governments have
enacted, or may enact, nor the conflicts which may exist between tribal
laws and State and local laws over the regulation of surface coal
mining operations on Indian lands and would not affect the
applicability of such tribal laws and regulations. Hence, the concerns
raised by the commenter are beyond the scope of this rulemaking. The
Tribes have raised this issue in the case of Hopi Indian Tribe v.
Secretary of the Interior, supra, and it may be addressed in that
proceeding.
IV. Procedural Matters
Federal 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.
Executive Order 12866, Regulatory Planning and Review
This rule was not subject to Office of Management and Budget Review
under Executive Order 12866.
Regulatory Flexibility Act
The U.S. Department of the Interior (DOI) certifies that this
document would not have a significant economic effect on a substantial
number of small entities under the Regulatory Flexibility Act, 5 U.S.C.
601 et seq. This determination is based on the fact the rule would
permit an operator to comply with either initial program rules or
permanent program rules. All seven existing mines on Indian lands in
the states of Arizona, New Mexico, and Montana would be affected.
Executive Order 12778, Civil Justice Reform
This rule has been reviewed under the applicable standards of
Section 2(b)(2) of Executive Order 12778, Civil Justice Reform (56 FR
55195). In general, the requirements of Section 2(b)(2) of Executive
Order 12778 are covered by the preamble discussion of this rule.
Additional remarks follow concerning individual elements of the
Executive Order:
A. What is the preemptive effect, if any, to be given to the
regulation?
The rule will have no preemptive effect, since it merely
substitutes one set of Federal standards for another set, and no State
performance standards or other requirements apply.
B. What is the effect on existing Federal law or regulation, if
any, including all provisions repealed or modified?
This rule modifies the implementation of SMCRA as described herein,
and is not intended to modify the implementation of any other Federal
statute. The preceding discussion of this rule specifies the Federal
regulatory provisions that are affected by this rule.
C. Does the rule provide a clear and certain legal standard for
affected conduct rather than a general standard, while promoting
simplification and burden reduction?
The standards established by this rule are as clear and certain as
practicable, given the complexity of the topics covered and the
mandates of SMCRA. As noted above, the rule will simplify the
regulatory process by establishing one set of initial program
regulatory provisions for all surface coal mining operations. The rule
would also allow surface coal mining operations to choose to comply
with permanent program standards which are in some cases less stringent
than initial program standards, where OSM has determined that less
stringent permanent program standards fully ensure compliance with
SMCRA.
D. What is the retroactive effective, if any, to be given to the
regulation?
This rule is not intended to have retroactive effect.
E. Are administrative proceedings required before parties may file
suit in court? Which proceedings apply? Is the exhaustion of
administrative remedies required?
No administrative proceedings are required before parties may file
suit in court challenging the provisions of this rule under section
526(a) of SMCRA, 30 U.S.C. 1276(a).
Prior to any judicial challenge to the application of the rule,
however, administrative procedures must be exhausted. Applicable
administrative procedures may be found at 43 CFR Part 4.
F. Does the rule define key terms, either explicitly or by
reference to other regulations or statutes that explicitly define those
items?
Terms which are important to the understanding of this rule are set
forth in 30 CFR 700.5, 701.5 and 750.5.
G. Does the rule address other important issues affecting clarity
and general draftsmanship of regulations set forth by the Attorney
General, with the concurrence of the Director of the Office of
Management and Budget, that are determined to be in accordance with the
purposes of the Executive Order?
The Attorney General and the Director of the Office of Management
and Budget have not issued any guidance on this requirement.
National Environmental Policy Act
OSM has prepared a final environmental assessment (EA), and has
made a finding that the proposed rule 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. 4332(2)(C).
A finding of no significant impact (FONSI) has been approved in
accordance with OSM procedures under NEPA. The EA is on file in the OSM
Administrative Record at the address specified previously (see
ADDRESSES).
Authors
The principal authors of this proposed rule are Billie E. Clark,
Federal and Indian Permitting Branch, Office of Surface Mining
Reclamation and Enforcement, Denver, Colorado, and John S. Retrum,
Office of the Field Solicitor, U.S. Department of the Interior, Denver,
Colorado. Telephone: 303-844-2829 and 303-231-5350, respectively.
List of Subjects
25 CFR Part 200
Environmental protection, Indian lands, Mineral resources, Mines.
25 CFR Part 216
Environmental protection, Indian lands, Mineral resources, Mines.
30 CFR Part 710
Law enforcement, Public health, Reporting and recordkeeping
requirements, Safety, Surface mining, Underground mining.
30 CFR Part 715
Environmental protection, Reporting and recordkeeping requirements,
Surface mining, Underground mining.
30 CFR Part 716
Special performance standards, Steep-slope mining, Mountaintop
removal, Bituminous coal mines, Prime farmlands.
30 CFR Part 717
Environmental protection, Reporting and recordkeeping requirements,
Underground mining.
30 CFR Part 750
Indian lands, Intergovernmental relations, Reporting and
recordkeeping requirements, Surface mining, Underground mining.
Dated: July 18, 1994.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
August 5, 1994.
Ada E. Deer,
Assistant Secretary, Indian Affairs.
Accordingly, 25 CFR parts 200 and 216 and 30 CFR parts 710, 715,
716, 717, and 750 are amended as set forth below:
25 CFR CHAPTER I
PART 200--TERMS AND CONDITIONS: COAL LEASES
1. The authority citation for Part 200 continues to read as
follows:
Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.), as amended.
2. Section 200.12 is added to read as follows:
Sec. 200.12 Contract term incorporation.
The requirements of 30 CFR Part 750 shall be incorporated in all
existing and new contracts entered into for coal mining on Indian
lands.
PART 216--SURFACE EXPLORATION, MINING, AND RECLAMATION OF LANDS
3. The authority citation for Part 216 continues to read as
follows:
Authority: 34 Stat. 539, 35 Stat. 312; 25 U.S.C. 355 NT; 35
Stat. 781; 25 U.S.C. 396; sec. 1, 49 Stat. 1250; 25 U.S.C. 473a; 49
Stat. 1967, 25 U.S.C. 501, 502; 52 Stat. 347, 25 U.S.C. 396 a-f; 5
U.S.C. 301.
Subpart B--[Removed]
4. Subpart B--Coal Operations, consisting of Secs. 216.100-216.111,
is removed in its entirety.
30 CFR CHAPTER VII
PART 710--INITIAL REGULATORY PROGRAM
5. The authority citation for Part 710 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended, and Pub. L. 100-
34.
6. In Sec. 710.11, paragraph (b) is revised to read as follows:
Sec. 710.11 Applicability.
* * * * *
(b) Operations on Indian lands. Any person who conducts surface
coal mining and reclamation operations on Indian lands on or after
December 16, 1977, in accordance with section 750.11(c) of this
chapter, or who was otherwise subject to 25 CFR Part 216, Subpart B
prior to September 22, 1994; shall comply with the performance
standards of this subchapter.
* * * * *
PART 715--GENERAL PERFORMANCE STANDARDS
7. The authority citation for Part 715 continues to read as
follows:
Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.).
8. In Sec. 715.11, paragraph (d) is added to read as follows:
Sec. 715.11 General obligations.
* * * * *
(d) Indian lands. (1) Mine maps. Any person conducting surface coal
mining and reclamation operations on Indian lands under this part shall
submit no fewer than 7 copies of an accurate map of the mine and
authorized mining areas at a scale of 1:6000 or larger. The map shall
show, as of December 16, 1977, the lands where coal has not yet been
removed and the lands and structures that have been used or disturbed
to facilitate surface coal mining operations.
(2) Consultation with tribal governments. Any requirement in this
part for consultation with or notification to State and local
governments shall be interpreted as requiring, in like manner,
consultation with or notification to tribal governments. OSM shall
consult with the Bureau of Indian Affairs with respect to special
requirements relating to the protection of noncoal resources and with
the Bureau of Land Management with respect to the requirements relating
to the development, production, and recovery of mineral resources on
Indian lands.
PART 716--SPECIAL PERFORMANCE STANDARDS
9. The authority citation for Part 716 continues to read as
follows:
Authority: Sections 201, 501, 527 and 529, Pub. L. 95-87, 91
Stat. 445 (30 U.S.C. 1201).
10. Section 716.10 is revised to read as follows:
Sec. 716.10 Information collection.
The Office of Management and Budget has determined that the
information collection requirements contained in 30 CFR part 716 do not
require approval under the Paperwork Reduction Act.
PART 717--UNDERGROUND MINING GENERAL PERFORMANCE STANDARDS
11. The authority citation for Part 717 continues to read as
follows:
Authority: Sections 201 and 501, Pub. L. 95-87, 91 Stat. 445 (30
U.S.C. 1201).
12. Section 717.10 is revised to read as follows:
Sec. 717.10 Information collection.
The Office of Management and Budget has determined that the
information collection requirements contained in 30 CFR part 717 do not
require approval under the Paperwork Reduction Act.
PART 750--REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION
OPERATIONS ON INDIAN LANDS
13. The authority citation for Part 750 continues to read as
follows:
Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq., as amended);
and Pub. L. 100-34.
14. Section 750.10 is revised to read as follows:
Sec. 750.10 Information collection.
The Office of Management and Budget has determined that the
information collection requirements contained in 30 CFR part 750 do not
require approval under the Paperwork Reduction Act.
15. In Sec. 750.16, the second sentence is revised to read as
follows:
Sec. 750.16 Performance Standards.
* * * Prior to that time, the person conducting surface coal mining
and reclamation operations shall adhere to the performance standards of
30 CFR Chapter VII, Subchapter B.
[FR Doc. 94-20514 Filed 8-22-94; 8:45 am]
BILLING CODE 4310-05-M
