This rule is issued under Marketing Agreement and Order No. 924 (7 CFR 924), regulating the handling of fresh prunes grown in designated counties in Washington and in Umatilla County, Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Washington-Oregon prune handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable prunes beginning April 1, 2004, and continue until amended, suspended, or terminated. This rule would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule would increase the assessment rate established for the Committee for the 2004-2005 and subsequent fiscal periods from $1.50 to $1.75 per ton of prunes handled.

The order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers in designated counties in Washington and in Umatilla County, Oregon. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate was formulated and discussed at a public meeting, thus all directly affected persons had an opportunity to participate and provide input.

For the 2003-2004 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate of $1.50 per ton of fresh prunes handled. This assessment rate continues in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on May 25, 2004, and unanimously recommended 2004-2005 expenditures of $7,454 and an increased assessment rate of $1.75 per ton of prunes. In comparison, last year's budgeted expenditures were $7,411. The assessment rate of $1.75 is $0.25 higher than the rate currently in effect. The Committee recommended the higher assessment rate to cover budgeted expenses and to maintain its monetary reserve at a satisfactory level.

The major expenditures recommended by the Committee for the 2004-2005 fiscal period include $3,928 for employee salaries, $576 for rent and maintenance, $500 for Committee travel, and $475 for the annual financial audit. These budgeted expenses are the same as those approved for the 2003-2004 fiscal period.

The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Washington-Oregon prunes. Applying the $1.75 per ton assessment rate to the Committee's 4,500 ton crop estimate should provide $7,875 in assessment income. Thus, income derived from handler assessments would be adequate to cover the recommended $7,454 budget for 2004-2005. Funds in the reserve ($4,900 as of March 31, 2004), would be kept within the maximum permitted by the order of approximately one fiscal period's operational expenses (§ 924.42.)

The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although the assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate the Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2004-2005 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 215 producers of fresh prunes in the regulated production area and approximately 10 handlers subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $5,000,000.

Based on the total number of producers (215), the most recent three-year average fresh prune production of 4,359 tons (from Committee records) and the most recent three-year average producer price of $303 per ton as reported by the National Agricultural Statistics Service, the average annual revenue from the sale of fresh prunes is approximately $6,143 per producer. In addition, based on Committee records and 2003 f.o.b. prices ranging from $8.50 to $9.50 per 30-pound container as reported by the AMS Market News Service, the entire Washington-Oregon fresh prune industry handles less than $5,000,000 worth of prunes. In view of the foregoing, the majority of Washington-Oregon fresh prune producers and handlers may be classified as small entities.

This rule would increase the assessment rate established for the Committee and collected from handlers for the 2004-2005 and subsequent fiscal periods from $1.50 to $1.75 per ton for prunes. The Committee unanimously recommended 2004-2005 expenditures of $7,454 and the $1.75 per ton assessment rate. The proposed assessment rate of $1.75 is $0.25 higher than the 2003-2004 rate. With an estimated 2004-2005 prune crop of 4,500 tons, the $1.75 rate should provide the Committee with $7,875 in assessment income, which would be adequate to cover budgeted expenses. The Committee recommended the higher assessment rate to help ensure that budgeted expenses are covered and that its monetary reserve would not have to be used. Funds in the reserve ($4,900 as of March 31, 2004), would be kept within the maximum permitted by the order of approximately one fiscal period's operational expenses (§ 924.42).

The major expenditures recommended by the Committee for the 2004-2005 fiscal period include $3,928 for employee salaries, $576 for rent and maintenance, $500 for Committee travel, and $475 for the annual financial audit. These budgeted expenses are the same as those approved for the 2003-2004 fiscal period.

The Committee discussed alternatives to this rule, including alternative expenditure levels. Lower assessment rates were considered, but not recommended because they would not generate the income necessary to administer the program with an adequate reserve.

A review of historical information and preliminary information pertaining to the upcoming crop year indicates that the producer price for the 2004-2005 season could range from about $273 per ton and about $351 per ton. Therefore, the estimated assessment revenue for the 2004-2005 fiscal period as a percentage of total producer revenue could range between 0.50 and 0.64 percent.

This action would increase the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs would be offset by the benefits derived by the operation of the order. In addition, the Committee's meeting was widely publicized throughout the Washington-Oregon fresh prune industry and all interested persons were invited to attend and participate in the Committee's deliberations on all issues. Like all Committee meetings, the May 25, 2004, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large Washington-Oregon fresh prune handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ama.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

A 15-day comment period is provided to allow interested persons to respond to this proposed rule. Fifteen days is deemed appropriate because: (1) The 2004-2005 fiscal period began on April 1, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable Washington-Oregon fresh prunes handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay for expenses which are incurred on a continuous basis; and (3) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years.

For the reasons set forth in the preamble, 7 CFR part 924 is proposed to be amended as follows:

Section 241(b)(1) and (2) of the Immigration and Nationality Act (Act) (8 U.S.C. 1231(b)(1) and (2)) provide the process for determining the countries to which an alien  1 may be removed after a hearing before an immigration judge, the issuance of a final order finding that the alien is removable from the United States and not eligible for relief from removal, and disposition of any administrative and judicial appeals.

Section 241(b)(1) of the Act relates to arriving aliens whom the Department of Homeland Security (DHS) has placed in removal proceedings, a relatively small category because most arriving aliens are subject to expedited removal under section 235 of the Act (8 U.S.C. 1225). Section 241(b)(1) provides a two-step process to determine the country of removal for an arriving alien: (1) to the country from which the alien boarded a conveyance to the United States; or (2) to an alternative country, such as the country of citizenship or birth.

Section 241(b)(2) of the Act applies in the far more common circumstance of the removal of other ( i.e. , non-arriving) aliens. Section 241(b)(2) provides a three-step process to determine the country of removal for these aliens: (1) the country designated by the alien; (2) an alternative country of which the alien is a subject, national or citizen, with certain conditions; and (3) an additional country, such as the country from which the alien boarded a conveyance to the United States or of the alien's residence or birth.

Sections 241(b)(1) and (2) of the Act use the terms “country” and “accept” without any statutory definition. Some subparagraphs of paragraph (b)(2) state that the alien is to be removed to a “country” that will “accept” the alien, while other provisions do not state that a “country” must “accept” the alien. The United States courts of appeals have differed on the meaning and effect of these terms. Compare Jama v. INS, 329 F.3d 630 (8th Cir. 2003), cert. granted, 124 S.Ct. 1407 (2004) (No. 03-674), with Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003), petition for reh'g pending (No. 03-35096, 9th Cir.). These rules propose to implement the provisions of the Act and amend the regulations of the Department of Homeland Security and the Department of Justice in response to this intercircuit conflict.

When an alien is charged with being removable from the United States, he or she is provided with a hearing before an immigration judge and asked whether he or she admits or denies the allegations of fact and concedes or disputes the charges in the Notice to Appear. Except for arriving aliens covered by section 241(b)(1) of the Act, the immigration judge then inquires if the alien wishes to designate a country to which he prefers to be removed if removal from the United States is required. Upon such designation by the alien, or refusal to designate, the immigration judge will specify a country, or countries in the alternative, on the record. If the immigration judge finds the respondent to be removable and ineligible for relief from removal, the immigration judge will enter an order of removal from the United States. That order may be appealed to the Board of Immigration Appeals (Board) and the courts. When an order of removal from the United States becomes final, the Department of Homeland Security is responsible for executing the order and will issue a Warrant of Removal.

Section 241(b)(1) of the Act provides that the Secretary shall ordinarily remove the alien to the country in which the respondent boarded the vessel or aircraft on which the alien arrived in the United States. If removal to that country is not possible because its government is “unwilling to accept the alien into that country's territory, removal shall be to any of the following countries”:

(i) The country of which the alien is a citizen, subject, or national.

(ii) The country in which the alien was born.

(iii) The country in which the alien has a residence.

(iv) A country with a government that will accept the alien into the country's territory if removal to each country described in a previous clause of this subparagraph is impracticable, inadvisable, or impossible.

For all other aliens, section 241(b)(2) of the Act sets out the order, or sequence, of countries and territories to which the Secretary shall remove the alien. Generally, an alien in removal proceedings will be removed to the country he or she designates before the immigration judge. However, there are a number of exceptions to this requirement. For example, the alien's designation may be disregarded if the government of the country is not willing to accept the alien into the country.

If one of the exceptions applies, the Secretary shall remove the alien to an alternative country. Section 241(b)(2)(D) of the Act provides that, if an alien is not removed to the country designated by the alien, the Secretary shall remove the alien to a country of which the alien is a subject, national, or citizen unless the government of that country—(i) does not inform the Secretary or the alien finally, within 30 days after the date the Secretary first inquires or within another period of time the Secretary decides is reasonable, whether the government will accept the alien into the country; or (ii) is not willing to accept the alien into the country.

Finally, if removal to an alternative country cannot be made under section 241(b)(2)(D) of the Act, subsection (E) provides that the Secretary shall remove the alien to any of the following countries:

(i) The country from which the alien was admitted to the United States.

(ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States.

(iii) A country in which the alien resided before the alien entered the country from which the alien entered the United States.

(iv) The country in which the alien was born.

(v) The country that had sovereignty over the alien's birthplace when the alien was born.

(vi) The country in which the alien's birthplace is located when the alien is ordered removed.

(vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country.

The structure of the sequence of countries for removal is clear. However, one circuit court has interpreted the final clause of subparagraph (E)(vii), which restricts removal to countries where governments will accept the alien, as modifying the entire subparagraph. As explained in Part D, the Secretary and the Attorney General find that the better reading of the statute is that this language modifies only clause (vii). Accordingly, if the Secretary is unable to remove an alien to a country of designation or an alternative country in subparagraph (D), the Secretary may, in his discretion, remove the alien to any country listed in subparagraphs (E)(i) through (E)(vi), whether or not those countries will accept the alien. The proposed regulations implement this interpretation and eliminate provisions that could be confusing.

Once an alien receives a final order of removal, the Department of Homeland Security issues a Warrant of Removal, and the process of returning that alien begins. Generally, the first step in the removal process is to ensure that the alien has a valid travel document from the country to which he is to be returned. A valid travel document may consist of a passport from that country (and even an expired passport in certain cases), a laissez passer, or other evidence that the Department of State and DHS believe is sufficient to authorize the alien's international travel, depending on the country involved and the specific relations with that country and any intervening transit countries. In some cases, no travel document is used in the repatriation.

For example, thousands of Mexican nationals are returned across the border to Mexico each year without notification to the government of Mexico and without the requirement of a travel document. Additionally, the United States routinely repatriates aliens without requesting separate travel documents where aliens are apprehended with or provide DHS Immigration and Customs Enforcement (ICE) with valid travel documents. In many cases, repatriations using existing travel documents do not involve specific notification to the alien's home country.

In those cases where a valid travel document does not exist, the DHS Detention and Removal program contacts the foreign government's embassy or consulate in the United States and attempts to obtain a travel document valid for the return of the alien. The local field office of Detention and Removal sends to the embassy or consulate a travel document request that consists of biographical forms, documents that establish nationality, and other documents that may be requested by the embassy or consulate. Contact with the foreign government may also include specific contacts through the Chief of Mission of the United States Embassy in that country with the Foreign Minister of that country and between other officers of the United States Department of State and the foreign country's appropriate Ministry. Once the travel document has been secured, travel arrangements are made, the alien is returned and the Warrant of Removal is executed. The negotiation of travel documents for an alien to a foreign country may be routine and accomplished at the staff level, or may require negotiation by ambassadors, depending on the specific country, the international relations with that country, specific events and other negotiations with that country, and even the specific alien's identity, at the time the travel documents are negotiated.

Depending upon the country, this travel document issuance process can take from days to months. The question of how long the process takes in many instances reflects the general relationship the United States has with a given country. There are certain countries that have historically steadfastly refused to issue documents, even though they know that a given alien is a national of their country. ICE and the Department of State have attempted to reach an accord or agreement with these countries and will continue to do so.

As a matter of historical practice, ICE has not attempted with any frequency to remove aliens to a particular foreign country if the country has a functioning central government and that government objects to the alien's entry. As a practical matter, removal to a country with a functioning central government is very unlikely to occur unless that government at least implicitly “accepts” the alien.

Also, there are a variety of ways in which foreign governments have manifested their willingness to “accept” a removed alien. Acceptance has not always been expressed through any formal declaration or documentation, and it has not always been specific to an individual alien—an established, agreed-upon practice for dealing with a particular class of aliens has been sufficient. Removal practices vary from country to country. In fact, ICE uses several methods to accomplish the physical removal of aliens from the United States. For example, ICE officers may escort an alien to the United States border, and watch the alien cross the border into a foreign country such as Mexico without more than a determination that the individual is of Mexican nationality or citizenship.

ICE officers may place an alien on a commercial or charter carrier without further escort by ICE, and ensure that the alien is on the commercial or charter carrier and that the carrier departs from the territory of the United States, such as routine returns to most countries of the world, even though intervening transit countries may have only an implicit or tacit agreement to permit the transit of the alien. This is the most common scenario for non-contiguous countries and their citizens or natives and is used routinely for thousands of aliens to most of the nearly 200 countries of the world. For any transit that involves an intervening layover before reaching the final ticketed destination, DHS recognizes that under this scenario, the alien's actual return to a specific country of nativity or citizenship (though paid for by the United States) is entirely dependent on that alien's continuation of through transit ticketing and whether any through transit country will permit the alien to deviate from the existing ticketing.

ICE officers alternatively may accompany an alien when he or she is placed on a commercial or charter carrier through transit to a final destination. This extensive escort service is generally only employed when removing an alien from the United States where there is a risk of flight or concern about the public safety, such as in the case of certain criminal aliens. These cases require greater cooperation of any transit countries and may entail specific routing of the alien and his or her escort through specific cooperating countries, even though more costly and indirect. For example, while DHS routinely utilizes the Kingdom of the Netherlands as a transit country, it is unable to transit nationals of Burundi through the Netherlands, based upon the latter country's request.

Except for the first method of removal, each of these scenarios may involve the alien stopping in a country of transit prior to his or her final destination. In addition, ICE officers who escort aliens may stop accompanying the alien once the alien stops at and passes through a country of transit on to his or her final destination. For example, an alien being removed to India on a flight transiting through the Netherlands may only be accompanied to the door of the plane in the Netherlands, rather than being accompanied by an ICE officer all the way to India.

The role of ICE officers in each of these scenarios is not to obtain the acceptance of the country of removal, but to ensure that the removal order has been carried out through witnessing the alien's crossing of a border, the alien's departure on a commercial or charter carrier, or the alien's passage into or through a transiting country on to his or her final destination. ICE officers are utilized to ensure that aliens being removed are placed at a point of no return to the United States. Accordingly, even though the rules distinguish between the immigration judge's order of removal from the United States and the actual removal of the alien to a different country, the actual removal of the alien by DHS is generally not predicated on any acceptance of the alien into any specific country.

The proposed rules also address whether an alien may be removed to a country where there is no functioning “government.” With respect to the countries determined pursuant to sections 241(b)(1)(C)(i)-(iii) and (2)(E)(i)-(vi) of the Act, the proposed rules each provide that the absence of a “government” in the receiving country does not preclude the Secretary from removing the alien to that country. This situation is not entirely uncommon. In a number of transitory periods, a specific “country” may not have a “government” or its government may not be recognized by the United States Government, the United Nations, or other foreign states or international bodies. Whether a country has a government is not a question that can be defined by statute or regulation. It does not follow, however, that the removal of aliens to the territory of such a receiving country must cease until a “government” is organized, or until that government is recognized. Likewise, it is unnecessary to obtain a commitment of acceptance by the receiving country before travel arrangements are made and the alien is transported. Such a commitment is desirable, but national security concerns, including foreign policy concerns, as well as other Executive Branch interests might deem removal appropriate even in the absence of acceptance. Thus, where it is not possible for the United States Government to request the government of a receiving country to accept these aliens through the normal diplomatic channels, the DHS proposed rule provides that the Secretary can designate a country previously identified in section 241(b)(2)(A)-(D) of the Act when selecting an additional removal country pursuant to clause (E)(i)-(vi), if the Secretary determines the designation is in the best interests of the United States.

The discussion in these proposed rules relates only to the determination of the country of removal for purposes of section 241(b) of the Immigration and Nationality Act, and does not address the broader issues relating to what constitutes a government and when a government is recognized by the United States, the latter being a foreign policy responsibility carried out by the Secretary of State.

The first reason that the Secretary and the Attorney General conclude that acceptance is not required in sections 241(b)(2)(E)(i) through (vi) of the Act is that the statute does not require acceptance. In construing the Act, as with other Congressional enactments, the Supreme Court repeatedly has held itself “bound to ‘assume that the legislative purpose is expressed by the meaning of the words used.’ ” INS v. Cardozo-Fonseca, 480 U.S. 421, 431 (1987) (quoting INS v. Phinpathya, 464 U.S. 183, 189 (1984)) (internal quotations omitted). That approach is consistent with the Court's more general admonition that “[t]he plain meaning of legislation should be conclusive, except in the ‘rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989) (alteration in original); see also Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”). The Secretary and the Attorney General follow this guidance in the promulgation of the proposed rules, as illustrated more fully below.

The question whether “acceptance” is a legal prerequisite to removal of an alien to a particular country is likely to have practical significance only in situations where the reason that acceptance cannot be obtained is that the relevant country lacks a functioning central government. As a theoretical matter, the same question might arise if the Secretary attempted to remove an alien to a specific country over the objection of that country's government. As previously explained, however, the general practice of the Executive Branch is not to attempt to remove an individual under the Act to a country whose government refuses to accept him.

The text of sections 241(b)(1)(C)(i)-(iii) and 241(b)(2)(E)(i)-(vi) of the Act (8 U.S.C. 1231(b)(1)(C)(i)-(iii) and 1231(b)(2)(E)(i)-(vi)) contains no requirement for acceptance in order to effectuate removal. To the contrary, the Act is plainly designed to give the Executive Branch a wide range of grounds and countries for effecting removal either with or without acceptance. Moreover, although the Act demonstrates a clear and sensible preference for effecting removal with acceptance under sections 241(b)(1)(A), (B) and 241(b)(2)(A)-(D) of the Act, it carefully preserves the discretion of the Executive Branch to effect removal without acceptance—except in the circumstance where the acceptance itself provides the only connection between the alien and the removal country at issue. See sections 241(b)(1)(C)(iv) and 241(b)(2)(E)(vii) of the Act.

As previously set out, sections 241(b)(2)(A) through (C) of the Act address removal to a country designated by the alien. In pertinent part, those provisions state that the Secretary “shall remove” an alien to the country designated by the alien (section 241(b)(2)(A)(ii)), but that the Secretary “may disregard a designation” if, among other things, “the government of the country is not willing to accept the alien into the country” (section 241(b)(2)(C)(iii)) or the Secretary “decides that removing the alien to the country is prejudicial to the United States' (section 241(b)(2)(C)(iv)). These provisions do not prohibit removal without acceptance: If acceptance is provided, they require removal to the country designated by the alien (unless the Secretary makes a highly discretionary determination that such removal is against the national interest), and if acceptance is not provided, they permit the Secretary not to remove the alien to the country designated by the alien. In no circumstances do these provisions affirmatively prohibit removal without acceptance to the designated country.

Section 241(b)(2)(D) of the Act addresses removal to a country of which the alien is a subject, national, or citizen. In pertinent part, it states that the Secretary “shall remove” the alien to such a country, unless the country “is not willing to accept the alien.” However, that provision also does not affirmatively prohibit removal to such countries without acceptance. Instead, it states a general rule requiring removal with acceptance to any country of which the alien is a national or citizen; and it contains an exception, which permits the Secretary not to remove the alien to such countries without acceptance.

Finally, section 241(b)(2)(E) of the Act specifies “[a]dditional” removal countries if an alien is “not removed to a country” under the prior subsections. The Secretary “shall remove” the alien to any of seven specified countries or categories of countries. The first six of these countries or categories of countries, defined without reference to acceptance, describe countries with some preexisting connection to the alien, e.g. , “[t]he country in which the alien was born,” in section 241(b)(2)(E)(iv). The final provision, section 241(b)(2)(E)(vii), states: “If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country.” The “acceptance clause” of this final provision expands the countries to which the Secretary may physically remove the alien to include any country that will accept the alien. This “acceptance clause” is discrete to the final clause (vii) of subparagraph (E) and does not apply to the previous clauses (i) through (vi) of subparagraph (E).

Various structural considerations reinforce the conclusion that acceptance is not required. To begin with, section 241(b)(2) of the Act specifically imposes an acceptance requirement in subparagraph (E)(vii), and specifically addresses the role of acceptance in determining removal under subparagraphs (A) through (D). Those express acceptance provisions foreclose any reasonable inference that the other pertinent provisions, subparagraphs (E)(i) to (E)(vi), somehow incorporate an implied acceptance requirement. Similarly, section 241(b)(1)(C)(iv) of the Act imposes an acceptance requirement that is absent from subparagraphs (C)(i) to (C)(iii). As the Supreme Court has repeatedly emphasized, “ ‘[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” Cardozo-Fonseca, supra, 480 U.S. at 432 (quoting Russello v. United States, 464 U.S. 16, 23 (1983) (in turn quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972))). Respecting such inclusions and omissions is even more important where they appear not only within the same statute, but also within the same section of the same statute. And it is yet more important when the provisions at issue are as “comprehensive and reticulated” as section 241(b)(2). See, e.g., Great Western Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 209 (2002). Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (specific qualifications for service in Congress set forth in the text of the Constitution may not be supplemented by Congress or the States).

Extending the narrow acceptance requirement of section 241(b)(2)(E)(vii) of the Act to all of the provisions of subparagraph (E), or the narrow acceptance requirement of section 241(b)(1)(C)(iv) of the Act to all of the provisions of subparagraph (C), would be a particularly egregious violation of these general principles. Subparagraph (E) states six possible removal countries without reference to acceptance, each of which has some past connection to the alien, and it then creates a residual removal provision that does require acceptance; in turn, that residual provision is triggered when it is “impracticable, inadvisable, or impossible to remove the alien” to those countries—not whenever the previously specified countries fail to provide acceptance. To be sure, the Secretary may (but need not) consider it “impracticable, inadvisable, or impossible” to effect removal where a foreign power has affirmatively refused acceptance. But where there is no relevant government capable of providing acceptance, concerns of comity between sovereigns are far diminished. Absent impracticability, acceptance under sections 241(b)(1)(C)(iv) or 241(b)(2)(E)(vii) of the Act is not even an available option, much less a compelled one.

A construction of the Act that maximizes the government's removal options is consistent with the dominant goals and objectives of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, section 305(a)(3), 110 Stat. 3009-597 (1996) (“IIRIRA”). As the Supreme Court has explained, “many provisions of IIRIRA are aimed at protecting the Executive's discretion from the courts—indeed, that can fairly be said to be the theme of the legislation.” Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 486 (1999) (emphasis in original). IIRIRA also sought to facilitate the removal of aliens, see Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. at 481-87, and to enact “wholesale reform[s]” to protect the public against rapidly “increasing rates of criminal activity by aliens,” Demore v. Kim, 538 U.S. 510, 518, 123 S. Ct. 1708, 1714-16 (2003).

An interpretation of the current statutory and regulatory environment contrary to that set forth in these rules would erect a de facto amnesty program for aliens from countries that lack an effective “functioning government.” Such a regime would effectively apply to all such aliens who cannot practicably be removed to an alternative removal country. For example, in the case of Somalia alone, where there is no functioning government recognized by the United States, the Department of Homeland Security estimates that this includes approximately 8,000 Somali nationals currently subject either to final orders of removal or to pending removal proceedings. Moreover, countries without an effective government are likely to present terrorism concerns, as demonstrated by the present situation in Somalia. See, e.g., United Nations, Report of the Panel of Experts in Somalia Pursuant to Security Council Resolution 1474 (Oct. 29, 2003) (describing activities of international terrorists in Somalia); U.S. Department of State, Patterns of Global Terrorism—2002, Africa Overview at 6 (same) (April 20, 2003) (available at http://www.state.gov/s/ct/rls/pgtrpt/2002/pdf/ ) (last accessed on May 4, 2004); Congressional Research Service, Report For Congress, Africa and the War on Terrorism, at 16-17 (same) (Jan. 17, 2002). The consequence of a theory that the Executive Branch cannot remove aliens who fail to qualify for asylum, withholding of removal, or temporary protected status, and whom no other country is willing to accept, is not only that such aliens may remain in the United States for the indefinite future, but also that they must be released wholesale from immigration detention absent special circumstances. See Zadvydas v. Davis, 533 U.S. 678 (2001). This is clearly not the intent of Congress in enacting IIRIRA, and that approach would impair implementation of the foreign policy of the United States.

The absence of a categorical prohibition against removal without acceptance does not render the Act's provisions to be inexplicable. Rather, the Act's provisions must be understood as a step-wise progression of determinations from the country designated by the alien to a country that has minimal contacts with the alien, even one that will not, or has not the capacity to, accept the alien.

Section 243(d) of the Act (8 U.S.C. 1253(d)), which provides for the termination of visa processing in countries that do not accept repatriation of citizens within a reasonable time, is effectively a penalty for forcing the United States to reach the more complicated issues of acceptance on an operational basis, not a limitation on the authority to remove an alien. The alien terrorist removal provisions at section 507(c) of the Act (8 U.S.C. 1537(c)) provide an authorization to the Secretary to maintain custody of an alien terrorist indefinitely if no other country will accept the alien terrorist.

Accordingly, the Secretary and the Attorney General find that the acceptance by a country is not required by the Act's language, structure, purpose, or intent. See INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (according deference to Attorney General's interpretation of Act). Moreover, intervening Congressional action, specifically in passage of the Homeland Security Act, and the creation of an intercircuit conflict warrant a fresh consideration of the elements contained in these provisions and correction of prior interpretations of the law.

Foreign policy considerations confirm that the provisions of the Act at issue here should not be read to require acceptance. As the Supreme Court has stressed repeatedly, the right of the Executive Branch to remove aliens “stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). See, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“power to expel or exclude aliens” is “a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control”) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953)). These considerations apply with special force to immigration issues arising under the Act involving foreign countries that are either hostile, dysfunctional, or lack the capacity to exercise their sovereign authority. In particular, in exercising authority to remove aliens under the Act, the Executive Branch has the responsibility to assess the foreign policy considerations that are presented by a foreign country that has no functioning government to accept its nationals. The Secretary, after consultation with the Secretary of State and other appropriate agencies, may assess such foreign policy considerations on a country-by-country basis.

The actual removal of an alien, even more than the designation of a country of removal by the alien or the identification of a country of removal in an immigration judge's order, “is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.” Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). Accordingly, while there may be judicial inquiry into the legal efficacy of the immigration judge's order, and habeas corpus may be sought to challenge the lawfulness of detention or restraint, the actual issues of to what “country” an alien may be removed and whether that country “accepts” the alien necessarily raise concerns for the separation of powers in trenching on matters committed to the Executive Branch. See Department of Navy v. Egan, 484 U.S. 518, 529 (1988) (“[F]oreign policy [is] the province and responsibility of the Executive”) (citation and quotation omitted); Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (“[T]he very nature of executive decisions as to foreign policy is political, not judicial”).

The proposed rule of the Department of Justice amends 8 CFR 1240.10(f) and 1240.12 to clarify the distinction between the administrative adjudication and the effectuation of the alien's removal, which implicates the foreign relations of the United States. The designation by the alien, under section 241(b)(2)(A)(ii) of the Act, and the identification in the immigration judge's order of removal are subject to judicial review. However, the actual removal of the alien to a foreign state pursuant to the Act is an exercise of the Executive Branch's foreign policy function. The Secretary will consult as appropriate with the Secretary of State in carrying out these functions.

Finally, the provisions relating to the removal of an alien to a foreign country (in contrast to orders of removal from the United States) are not for the benefit of the alien, but as a protection for the lawful foreign policy prerogatives of the United States. This is exemplified in section 241(h) of the Act (8 U.S.C. 1231(h)), which provides a rule of construction that “[n]othing in this section shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States. * * *” (emphasis added). This provision has rarely been construed, and there is no legislative history explicating Congressional purpose or intent. As the Supreme Court has noted, this provision is one of several statutory provisions that limit the circumstances in which judicial review of deportation decisions is available. Zadvydas v. Davis , 533 U.S. 678, 687-88 (2001).

A similar provision barred an alien's claim to compel initiation of deportation or removal proceedings, or provide damages for failure to initiate proceedings and effect removal in a timely fashion. Of particular note is that after an intercircuit conflict had developed in the early 1990s over whether mandamus would lie to compel the former INS to commence deportation proceedings, Congress intervened by enacting the same “no substantive or procedural rights” provision in 1994, and the courts conceded that aliens were no longer within the “zone of interest” of the statute. 2

What must I do to make a presentation at the meeting? If you would like to make a presentation at the meeting, make your request to FAA no later than 10 days prior to the meeting. Submit these requests to Mr. Marv Nuss as listed in the FOR FURTHER INFORMATION CONTACT section of this document. You should include a written summary of your presentation with a time estimate of your presentation.

Will FAA prepare an agenda? We will prepare an agenda for this meeting. To accommodate all presenters, we may allocate less time for your presentation than you requested. If you request to present after the deadline, we will schedule your presentation as time is available. However, your name may not appear on the agenda.

What if I need special equipment? You should include in your presentation request any special audiovisual equipment that you need. We will accommodate reasonable requests.

Why is the FAA conducting this meeting? There have been concerns about fatigue cracking on Cessna 400 series airplanes since the 1970s. In 1979, the FAA issued ADs to require periodic inspection of Cessna 400 series wing spars. The FAA evaluated fatigue and crack growth analysis recently performed by the Cessna Aircraft Company and determined that the wing spars of the Cessna 400 series require modification and periodic inspection to prevent in-flight wing separation. The service history includes a 1999 accident caused by a wing failure and six other incidents where cracks were found before the wing failed. To address this airworthiness concern, the FAA issued two NPRMs in May 2003 (that would supersede two existing ADs on the affected aircraft) to propose incorporating a spar strap modification on each wing spar.

Many owners of the affected aircraft were vehemently opposed to the action due to the high cost. To ensure that the public had the opportunity to fully communicate their concerns, the FAA:

• Extended the comment period an additional 30 days beyond the initial 60-day comment period;

• Reopened the comment period for another 60 days; and

• Held a public meeting on March 3 and 4, 2004, in Herndon, Virginia.

After analyzing all information related to this subject, the FAA decided not to issue the new ADs as proposed. The FAA has determined that the best way to address the unsafe condition is for the FAA, the public, and industry to develop alternative solutions for addressing the unsafe condition. Accordingly, the FAA withdrew the NPRMs on May 18, 2004 (69 FR 29672, May 25, 2004) and is holding this second meeting to continue this effort.

What procedures should I follow for this public meeting? If you plan to attend the public meeting, please be aware of the following:

• There is no admission fee or other charge to attend or participate in this meeting. You are responsible for your own transportation and accommodations for the meeting. The meeting is open to all who requested in advance to present or who register on the day of the meeting. This is subject to availability of space in the meeting room.

• FAA representatives will conduct the meeting. We will have a panel of technical experts and managers to discuss information on the subject.

• The public meeting is intended as a forum to seek additional data and supporting methodologies from industry, the general public, and operators. You must limit your presentation and submittals to data of this issue.

• The meeting will allow you to present additional information not currently available to FAA and an opportunity for FAA to explain to you the methodology and technical assumptions that support our conclusions.

• FAA experts, industry, and public participants are expected to hold a full discussion of all technical material presented at the meeting. If you present conclusions on this subject, you must submit data that supports your conclusions.

• We will try and accommodate all speakers. In order to do this, we may need to limit the time for presenters.

• We can make sign and oral interpretation available at the meeting, as well as an assistive listening device. If you need this assistance, make your request to FAA at least 10 days prior to the public meeting.

• A court reporter will record the discussions of the meeting. If you would like to purchase a copy of the transcript, you must contact the court reporter directly. We will provide further information at the meeting.

• We will review and consider all material presented. Position papers or materials may be accepted at the discretion of the presiding officer. The FAA requests that you provide 10 copies of all materials for distribution to the panel members. You have the choice on whether you want to present copies of the material to the audience.

• The meetings are designed to solicit public views and information. Therefore, we will conduct the meeting in an informal and nonadversarial manner.

The majority of the Department of State's consular fees are established pursuant to the general user charges statute, 31 U.S.C. 9701, and/or 22 U.S.C. 4219, which, as implemented through Executive Order 10718 of June 27, 1957, authorizes the Secretary of State to establish fees to be charged for official services provided by embassies and consulates. Fees established under these authorities include fees for immigrant and nonimmigrant visa processing, for fingerprints, and for overseas citizens services. In addition, a number of statutes address specific fees. Passport application fees (including the cost of passport issuance and use) are authorized by 22 U.S.C. 214, as are fees for the execution of passport applications. (This provision was amended on November 29, 1999, by Public Law 106-113, to permit collection of a nonrefundable application fee subject to promulgation of implementing regulations, which are at 22 CFR parts 51 and 53.) Section 636 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, 110 Stat. 3009-703-704 (Sept. 30, 1996), authorizes establishment of a diversity visa application fee to recover the full costs of the visa lottery conducted pursuant to Sections 203 and 222 of the Immigration and Nationality Act (INA), 8 U.S.C. 1153, 1202, but to be paid only by those who are selected through the lottery process and apply for a visa (so that those who are selected and apply for a visa pay the costs of participation for those who registered in the lottery but were not selected). Nonimmigrant visa reciprocity fees are authorized and, in fact, generally required, pursuant to Section 281 of the INA, 8 U.S.C. 1351. Notwithstanding the general rule of reciprocity, however, a cost-based, nonimmigrant visa processing fee for the machine readable visa (MRV) and for a combined border crossing and nonimmigrant visa card (BCC) (22 CFR 41.32) is authorized by Section 140(a) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Public Law 103-236 (April 30, 1994). Certain persons are exempted by law or regulation from payment of specific fees. These exemptions are noted in the fee schedule and include the nonimmigrant visa fee exemptions set forth in 22 CFR 41.107 for certain individuals who engage in charitable activities or who qualify for diplomatic visas. In addition, aliens under age 15 are in certain circumstances entitled to a combined MRV/BCC for a statutorily established fee of $13, which is below the full cost of service, pursuant to Section 410 of Title III of the Commerce, Justice, State Appropriations Act enacted as part of the Omnibus FY 1999 Appropriations Act, Public Law 105-277 (Oct. 21, 1998). Various statutes also permit the Department to retain some of the consular fees it collects. These are, at present, the MRV and BCC fees, the passport expedite fee, the fingerprint fee, the J Visa Waiver fee, the Diversity Visa Lottery fee, and the Affidavit of Support fee.

With the exception of nonimmigrant visa reciprocity fees, which are established based on the practices of other countries, all consular fees are established on a basis of cost recovery and in a manner consistent with general user charges principles, regardless of the specific statutory authority under which they are promulgated. As set forth in OMB Circular A-25, the general policy underlying user charges is that a reasonable charge should be made to each identifiable recipient for a measurable unit or amount of government service or property from which the user derives a special benefit. The OMB guidance covers all Federal Government activities that convey special benefits to recipients beyond those that accrue to the general public. The Department of State is required to review consular fees periodically to determine the appropriateness of each fee in light of applicable provisions of OMB Circular A-25. While services of direct benefit to individuals, organizations or groups should be paid for by the users rather than by taxpayers in general, the guidelines state that services performed for the primary benefit of the general public or the U.S. Government should be supported by tax revenues. The changes set forth in the proposed Schedule of Fees reflect these guidelines.

The last major update of the Schedule of Fees was in 2002. Consistent with OMB Circular A-25, the Department conducted a cost-of-service study to determine the current direct and indirect costs associated with each consular service the Department provides, so that the Schedule could be updated. The study was supervised by the Bureau of Consular Affairs and performed with the assistance of an independent contractor. The contractor and Department staff surveyed and visited domestic and overseas consular sites handling a representative sample of all consular services worldwide. This review attempted to identify the fully allocated costs of consular services (direct and indirect).

In situations where services are provided often enough to develop a reliable estimate of the average time involved, the Schedule generally sets a flat service fee. In other situations where services are not provided often enough, the fee was calculated based on the consular hourly rate. In either case, the fee is designed to recover some or all—but not more than—actual fully allocated costs the Department expects to incur over the period that the Schedule will be in effect. When the fee is set below costs, the remaining cost is either recovered through allocation to related services for which fees are charged, or will be covered by taxpayers through appropriations. (Detailed information concerning the methodology of the study is available from the Bureau of Consular Affairs.) Based on this effort and subsequent analysis, the Department is now proposing adjustments to the Schedule of Fees. Notable changes to the schedule are discussed below.

The fee to search Department of State files to verify an applicant's U.S. citizenship is being increased from $45 to $60. The $60 fee is still well below the actual cost of the service, and the remaining costs will continue to be recovered through the passport fee because this file search is almost always associated with a passport application. The fee is set slightly higher than the $55 adult passport application fee (which remains unchanged in the proposed Schedule) in order to encourage applicants to provide adequate citizenship documentation when applying for a passport rather than to request a costly, time-intensive file search by the Department to verify their U.S. citizenship. The fee remains below cost, however, to mitigate its impact on U.S. citizens who have lost all identification and need to have their citizenship verified by the Department of State so that they may obtain a replacement passport.

The Schedule increases the Diversity Visa (DV) Lottery surcharge for a diversity immigrant visa application from $100 to $375. The Department has legal authority to collect the surcharge only from persons who are selected through the lottery process and therefore qualify to apply for a DV visa, and to set it at a level sufficient to cover the entire cost of running the lottery. The current $100 DV fee recovers only some of the costs of the program, with remaining costs recovered through appropriations. In order to make the DV surcharge more consistent with the costs the Department is authorized to recover through the surcharge and with the full-cost recovery basis on which other consular fees are set and collected, the proposed increase allows for full recovery of all costs, both direct and indirect, from those who are selected through the lottery process and apply for a DV visa. The fee will continue to be collected from everyone selected in the lottery who pursues an application for DV status.

The Affidavit of Support Review fee is charged domestically for all Affidavits of Support reviewed at the National Visa Center to ensure that they are properly completed before they are forwarded to a consular post for adjudication. The fee is being increased from $65 to $70 to reflect the increase in the cost of providing this service to immigrant visa applicants. The actual cost of the service will be recovered in its entirety from the applicant through this increased fee.

The fee for this service has increased from $360 to $400. Even with the increase, the full costs for this service will not be recovered from the applicant. The balance of the costs associated with this service will still be recovered through the Immigrant Visa (IV) fee because immigrant visa applicants themselves may eventually benefit from the service of determining returning resident status. The $40 increase in the fee is based on maintaining this fee at the same percentage of the actual cost of service as the percentage used previously to set this particular fee.

The proposed Schedule decreases the fee for a transportation letter issued to a Legal Permanent Resident Alien (LPRA) who needs a transportation letter to reenter the U.S. from $300 to $165. The new fee reflects the unit cost for this service as determined by the recent cost-of-service study.

The fee for this service has decreased by $15, from $230 to $215. The fee reflects the actual cost of providing this service to J visa applicants as determined by the recent cost-of-service study.

The fee for these services will increase from $650 to $735. As with the fee for the service of determining returning resident status, this $735 does not recover the full cost of the service. The remaining costs are recovered through appropriations because it is in the interest of the United States Government to support these international legal processes. The $85 increase in the fee is based on recovering the same percentage of the actual cost of service as was recovered by the previous fee.

The Schedule raises from $235 to $265 the fee charged on an hourly basis for consular time. This fee is charged for fee services performed away from the office or after normal working hours. It is also the fee that is used as the basis for fees for other services that are based on consular time calculations, including services related to vessels and seamen, attending or taking depositions, sealing and certifying depositions (increasing the fee from $60 to $70), supervising and swearing in witnesses for telephone depositions, and making arrangements for a deceased non-U.S. citizen family member. The $265 reflects the actual unit cost of this service on a full-cost recovery basis, as determined by the most recent cost-of-service study.

The current Schedule lists loan processing as item 13 and a separate “no fee” service in the category of arrests, welfare and whereabouts, and related services under the heading of Overseas Citizens Services. In the new schedule, this item is being combined with item 12, which is assistance regarding the welfare and whereabouts of a U.S. citizen, including child custody inquiries. This is a purely technical change in the Schedule to shorten it and reflect that the kinds of loans covered by former item 13 are aspects of the Department's no-fee welfare and whereabouts work.

The Department is publishing this rule as a proposed rule with a 30-day provision for public comments.

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities as defined in 5 U.S.C. 601(6).

This rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order. In addition, OMB has been provided with an information copy of the proposed regulation.

The Department has reviewed this regulation in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This regulation will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule does not impose any new reporting or record-keeping requirements.

Accordingly, an amendment to part 22 CFR part 22 is proposed as follows:

A notice of proposed rulemaking and notice of public hearing that appeared in the Federal Register on Thursday, April 1, 2004, (69 FR 17117), announced that a public hearing was scheduled for Thursday, July 22, 2004, at 10 a.m. in the Auditorium, Internal Revenue Service Building, 1111 Constitution Avenue, NW., Washington, DC. The subject of the public hearing is proposed regulations under sections 856 and 1361 of the Internal Revenue Code. The public comment period for these proposed regulations expired on Wednesday, June 30, 2004. Outlines of oral comments were due on Thursday, July 1, 2004.

The notice of proposed rulemaking and notice of public hearing instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be addressed. As of Tuesday, July 13, 2004, no one has requested to speak. Therefore, the public hearing scheduled for Thursday, July 22, 2004, is cancelled.

A notice of proposed rulemaking and notice of public hearing that appearing in the Federal Register on Friday, March 26, 2004 (69 FR 15747), announced that a public hearing was scheduled for July 21, 2004 at 10 a.m., in the auditorium of the Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. The subject of the public hearing is proposed regulations under section 1397E, of the Internal Revenue Code. The public comment period for these proposed regulations expired on June 24, 2004.

The notice of proposed rulemaking and notice of public hearing instructed those interested in testifying at the public hearing to submit a request to speak and an outline of topics to be addressed by July 12, 2004. As of July 13, 2004, no one has requested to speak. Therefore, the public hearing scheduled for July 21, 2004, is cancelled.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Alaska program on March 23, 1983. You can find background information on the Alaska program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Alaska program in the March 23, 1983, Federal Register (48 FR 12274). You can also find later actions concerning Alaska's program and program amendments at 30 CFR 902.10, 902.15 and 902.16.

By letter dated May 11, 2004, Alaska sent us a proposed amendment to its program, (State Amendment Tracking System (SATS) No. AK-006, administrative record No. AK-9) under SMCRA (30 U.S.C. 1201 et seq. ). Alaska sent the amendment in response to portions of letters dated May 7, 1986, December 16, 1988, February 7, 1990, June 4, 1996, and June 19, 1997 (administrative record Nos. AK-01, AK-03, AK-06, AK-07 and AK-09), that we sent to Alaska in accordance with 30 CFR 732.17(c). Alaska also submitted the amendment in response to required program amendments codified at 30 CFR 902.16(a) and (b). Alaska submitted one provision at its own initiative. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES.

Specifically, Alaska proposes to make the following additions or revisions to its rules.

Revise 11 Alaska Annotated Code (AAC) 90.043(b), concerning hydrology and geology, to require that all water quality analyses performed to meet the requirements of 11 AAC 90.043, 11 AAC 90.047, or 11 AAC 90.049, must be conducted according to the methodology in the most current edition of the Standard Methods for the Examination of Water and Wastewater, or the methodology in 40 CFR 136 and 40 CFR 434.

Revise 11 AAC 90.045(a) by requiring a description of the geology within the permit and adjacent areas to include the deeper of either the stratum immediately below the lowest coal seam to be mined or any aquifer below the lowest coal seam to be mined which may be adversely impacted by mining, and to require that the description shall include the areal and structural geology of the permit and adjacent areas, and other parameters which influence the required reclamation and the occurrence, availability, movement, quantity, and quality of potentially impacted surface and ground waters.

Add 11 AAC 90.045(b) to require that test borings, or core samples from the proposed permit area must be collected and analyzed down to and including the deeper of either the stratum immediately below the lowest coal seam to be mined, or any aquifer below the lowest coal seam to be mined that may be adversely impacted, and to state what the analysis must include.

Add 11 AAC 90.045(c) to allow the Commissioner to require, at his or her discretion, that test borings or core samplings be collected and analyzed to greater depths within the proposed permit area or, for the area outside the proposed permit area, to provide for evaluation of the impact of the proposed activities on the hydrologic balance.

Add 11 AAC 90.045(d) to require that an application for an underground mine include a separate description of the geology of the area proposed to be affected by surface operations and facilities, surface land overlying coal to be mined, and the coal to be mined, and to state what must be included in the description.

Add 11 AAC 90.045(e) to provide an opportunity for an applicant to request that the requirements of 11 AAC 90.045(b) and (d) be waived, and require that the Commissioner will, in his or her discretion, grant the request upon a written determination that the requirement is unnecessary because other equivalent information is available.

Revise 11 AAC 90.057, concerning fish and wildlife information, by adding that upon request, the Commissioner shall provide the resource information and the protection and enhancement plan to the U.S. Department of the Interior, Fish and Wildlife Service (Service) regional or field office for their review, and that the information shall be provided within 10 days of receipt of the request from the Service.

Revise 11 AAC 90.457(c)(3) to require, for areas to be developed for fish and wildlife habitat, recreation, shelter belts, or forest products, that minimum stocking and planting arrangements be specified by the Commissioner, or his designee, on the basis of local conditions.

Add 11 AAC 90.085(e), concerning the plan for protection of the hydrologic balance, to tie the cumulative hydrologic impact assessment to the “cumulative impact area.”

Revise 11 AAC 90.349(l), concerning discharge of water or coal mine waste into an underground mine, to prohibit such discharge unless the operator demonstrates that the discharge will minimize disturbance to the hydrologic balance on the permit area, prevent material damage outside the permit area and otherwise eliminate public hazards resulting from surface mining activities.

Revised 11 AAC 90.089(a)(1) and 90.336(a) to require that the design and construction of a siltation structure, temporary or permanent impoundment, and coal mine waste dam or embankment, be prepared and certified by, or under the direction of, a registered professional engineer who is experienced or trained in the design and construction of impoundments.

Revise 11 AAC 90.337(a) to require that each permanent or temporary impoundment must be inspected by, or under the supervision of, a registered professional engineer or other qualified professional specialist under the direction of a professional engineer, and that the professional engineer or specialist shall be experienced or trained in the construction of impoundments.

Revise 11 AAC 90.491(f)(1) to require that plans and drawings for primary roads be prepared by, or under the direction of, and certified by a qualified registered professional engineer or a qualified registered professional land surveyor, with experience or training in the design and construction of roads.

Revise 11 AAC 90.173(a)(2), to allow eligibility for assistance under the small operator assistance program if the applicant establishes that the probable total, actual, and attributed production for each year of the permit will not exceed 300,000 tons.

Revise 11 AAC 90.173(b)(2) and (3) to determine that production will be attributed to the applicant based upon, respectively, (1) the pro rata share of coal produced by operations in which the applicant owns more than ten percent interest, or (2) all coal produced by persons who own more than ten percent of the applicant or who directly or indirectly control the applicant by reason of stock ownership, direction of the management, or in any other manner.

Revise 11 AAC 90.179(a), concerning data required in an application for small operator assistance, to allow the Commissioner to require, in order for the applicant to determine the probable hydrologic consequences of the operation, drilling and a statement of the results of test borings or core samplings from the proposed permit area.

Add 11 AAC 90.179(b) to require data, in an application for assistance under the small operator program, sufficient for (1) the development of cross-section maps and plans required by 11 AAC 90.065, (2) the collection of archaeological and historic information and related plans required by 11 AAC 90.041 and any other archaeological and historic information required by the Commissioner, (3) pre-blast surveys required by 11 AAC 90.373, (4) the collection of site-specific resources information, (5) the production of protection and enhancement plans for fish and wildlife habitats required by 11 AAC 90.057 and 11 AAC 90.423, and (6) information and plans for any other environmental values required by the Commissioner under the Act.

Add 11 AAC 90.179(c) to require that data collected under the small operator assistance program must be made available to interested persons as provided in Alaska Statutes (AS) 27.21.100.

Revise 11 AAC 90.185(a)(4) and (5) to require that an applicant for assistance under the small operator program shall reimburse the department for the cost of services rendered under 11 AAC 90.179 if the applicant has actual and attributed production of coal exceeding 300,000 tons during any consecutive 12-month period during the term of the permit for which the assistance is provided; or transfers, sells, or assigns the permit to another person whose total actual and attributed production exceeds 300,000 tons during any consecutive 12-month period of the remaining term of the permit (in this case, the applicant and its successor are jointly and severally obligated to reimburse the department).

Revise 11 AAC 90.201(d), concerning incremental bonding, to require that the independent increments must be of sufficient size and configuration to provide for efficient reclamation operations should reclamation by the regulatory authority become necessary.

Add 11 AAC 90.201(f), concerning the requirement to file a bond, to require that the operator maintain adequate bond coverage at all times and to state that, except as provided in 11 AAC 90.209(c), operating without a bond is a violation of a condition upon which the permit is issued.

Revise 11 AAC 90.211(a), concerning bond release procedure and criteria, to require the permittee to include in the application for each phase of bond release, a statement which certifies that all applicable reclamation activities have been accomplished in accordance with the requirements of AS 27.21, 11 AAC 90, and the approved reclamation plan.

Revise 11 AAC 90.311(g), concerning the removal of topsoil, to provide an exemption, based on accepted construction and reclamation practices for arctic permafrost or similar cold-weather conditions, from the requirements for removal, stockpiling, and redistribution of topsoil and other materials, if the Commissioner authorizes the handling of the material as part of the backfilling and grading process under 11 AAC 90.441 and 11 AAC 90.443.

Revise 11 AAC 90.443(k)(2), concerning backfilling and grading requirements, to require that all topsoil be removed segregated, stored and redistributed in accordance with 11 AAC 90.311 to 90.315.

Revise 11 AAC 90.323(a), concerning water quality standards, to refer to an exception at 11 AAC 90.323(b) from the requirement that any discharge of water from an underground working to surface water and all surface drainage from the disturbed area, including any disturbed area that has been graded, seeded, or planted, must pass through one or more siltation structures before leaving the permit area, unless the Commissioner finds that conditions such as permafrost or ice-covered ponds will allow the drainage to meet applicable State and Federal water quality laws and regulations without treatment, and until removal is approved by the Commissioner under 11 AAC 90.331(e).

Revise 11 AAC 90.323(b) to state that the Commissioner may allow other sediment control measures for primary sediment control for disturbed areas that have been regraded, respread with topsoil, and stabilized against erosion, if the Commissioner and the Environmental Protection Agency have approved the use of best management practices as the effluent limitation.

Revise 11 AAC 90.323(c) to require that the operator shall meet all applicable Federal and State water quality laws and regulations for the mixed drainage from the permit area when there is mixing of drainage from disturbed, reclaimed, and undisturbed areas.

Revise 11 AAC 90.331(e), concerning siltation structures, to state that unless removal is authorized under 11 AAC 90.232(b), a siltation structure may not be removed before the Commissioner's approval under 11 AAC 90.323(b), the untreated drainage from the disturbed area meets, and is expected to permanently meet, the applicable State and Federal water quality laws and regulations for the receiving stream (after the disturbed area has been stabilized and revegetated), and no earlier than two years after the last augmented seeding.

Revise 11 AAC 90.325(b) and (c) to require that each temporary and permanent diversion be designed and constructed to pass, respectively, the 2-year, 6-hour, and the 10-year, 6-hour, discharge, or larger event specified by the Commissioner.

Revise 11 AAC 90.327(b)(2) to require that each stream channel diversion be designed and constructed so that the combination of channel, bank, and flood plain configurations will be adequate to pass safely the 10-year, 6-hour, discharge for temporary diversions, the 100-year, 6-hour, discharge for permanent diversions, or larger events specified by the Commissioner based on the period of use and local conditions, and to require that the capacity of the channel itself must be at least equal to the capacity of the unmodified stream channel immediately upstream and downstream from the diversion.

Revise 11 AAC 90.331(d)(1), concerning siltation structures, to require that each sedimentation pond must be designed, constructed, and maintained to contain or treat the 10-year, 24-hour precipitation event (“design event”) unless a lesser design event is approved by the Commissioner based on terrain, climate, other site-specific conditions and on a demonstration by the operator that the effluent limitations of 11 AAC 90.323 will be met.

Add 11 AAC 90.331(h), concerning other treatment facilities, to require (1) other treatment facilities shall be designed to treat the 10-year, 24-hour precipitation event unless a lesser design event is approved by the Commissioner based on terrain, climate, other site-specific conditions and a demonstration by the operator that the effluent limitations of 11 AAC 90.323 will be met; and (2) other treatment facilities shall be designed in accordance with the applicable requirements of this section.

Revise 11 AAC 90.336(b)(1) and (2) to require that impoundments must contain a combination of principal and emergency spillways designed and constructed to pass safely the design peak discharge with the following recurrence interval, or larger event specified by the Commissioner based on the period of use and local conditions, (1) for a temporary impoundment, the 25-year, 6-hour, discharge; or (2) for a permanent impoundment, the 100-year, 6-hour, discharge.

Revise 11 AAC 90.391(n) to require that surface water runoff from the areas adjacent to and above valley fills must be diverted away from the fill, and surface runoff from the fill itself must be diverted into stabilized diversion channels designed to pass safely the 100-year 6-hour discharge or larger event specified by the Commissioner based on local conditions.

Revise 11 AAC 90.407(c) to require that surface runoff that may cause instability or erosion of the coal mine waste dam or embankment must be diverted into stabilized channels designed to pass safely the 100-year 6-hour discharge.

Revise 11 AAC 90.327(b)(1), concerning stream channel diversions, to clarify the meaning of “erosion control structures” by adding that they are features such as channel lining structures, retention basins, and artificial roughness structures used in diversions.

Add 11 AAC 90.491(f)(3) to require that natural stream channels shall not be altered or relocated without the prior approval of the Commissioner in accordance with 11 AAC 90.321 through 11 AAC 90.327 and 11 AAC 90.353.

Add 11 AAC 90.491(f)(4) to require that, except as provided in 11 AAC 90.491(e), structures for perennial or intermittent stream channel crossings shall be made using bridges, culverts, low-water crossings, or other structures designed, constructed, and maintained using current, prudent engineering practices, and that the Commissioner shall ensure that low-water crossings are designed, constructed, and maintained to prevent erosion of the structure or streambed and additional contributions of suspended solids to steam flow.

Revise 11 AAC 90.336(f), concerning impoundment design and construction, to correct the reference to the Alaska Dam Safety Program at 11 AAC 93.151—11 AAC 93.201.

Revise 11 AAC 90.345(e), concerning surface and ground water monitoring, to require monitoring of each stream, lake, and other surface water body that may be affected by the mining operation or that will receive a discharge, and at upstream locations.

Revise 11 AAC 90.375(f) to require the operator to publish a blasting schedule in local newspapers, at least 10 days, but not more than 30 days, before beginning a blasting program.

Revise 11 AAC 90.375(g) to require that an operator must distribute a revised blasting schedule at least 10 days, but not more than 30 days, before blasting when the area covered by the schedule changes or actual time periods for blasting significantly differ from the original schedule.

Revise 11 AAC 90.391(b), concerning disposal of excess spoil or coal mine waste, to require that the fill and associated drainage system be designed and certified by a registered professional engineer experienced in the design of similar earth and waste structures.

Revise 11 AAC 90.391(h)(2) to provide for disposal of nontoxic and nonacid forming coal mine waste in excess spoil fills if the operator demonstrates to the Commissioner, before the Commissioner approves of the disposal, that the placement of such material is consistent with the design stability of the fill.

Add 11 AAC 90.391(l), concerning disposal of excess spoil or coal mine waste, to require that the final configuration of the refuse pile shall be suitable for the approved post-mining land use; allow terraces to be constructed on the outslope of the refuse pile if required for stability, control or erosion, conservation of soil moisture, or facilitation of the approved post-mining land use, and require that the grade of the outslope between terrace benches shall not be steeper than 2h:1v (50 percent).

Revise 11 AAC 90.395(a), concerning coal mine waste, to require that (1) all coal mine waste, that will be disposed of in an area other than the mine workings or excavations, must be placed in new or existing disposal areas within a permit area, which are approved for this purpose, and (2) that coal mine waste must be hauled or conveyed and placed for final placement in a controlled manner to prevent mass movement during and after construction.

Revise 11 AAC 90.397(a), concerning inspections of excess spoil, underground development waste, or coal processing waste disposal areas, to require that the inspections be conducted by or under the direction of a registered professional engineer experienced in the construction of similar earth and waste structures.

Revise 11 AAC 90.401(a), concerning coal mine waste and refuse piles, to add the requirement that coal mine waste disposal areas that do not impound water, slurry, or other liquid or semi-liquid material comply with the requirements of 30 CFR 77.214 and 77.215.

Revise 11 AAC 90.401(d), concerning coal mine waste and refuse piles, to make an editorial correction to a referenced rule citation.

Revise 11 AAC 90.401(e), concerning coal mine waste and refuse piles, to allow less than four feet of cover over a regraded coal mine waste disposal area if the operator, based upon a physical and chemical demonstration, ensures that the requirements of 11 AAC 90.451 through 90.457 will be met.

Add 11.AAC 90.407(f), concerning impounding structures constructed of or impounding coal mine waste, to require that at least 90 percent of the water stored during the design precipitation event shall be removed within the 10-day period following the design precipitation event.

Revise 11 AAC 90.443(a) to allow for exceptions to the requirements to return all spoil to the mined out area and regrade to the approximate original contour if the operator demonstrates conditions of thick or thin overburden.

Revise 11 AAC 90.443(i) to state that where thin overburden occurs within the permit area, the permittee at a minimum shall (1) use all spoil and other waste materials available from the entire permit area to attain the lowest practicable grade, but not more than the angle of repose, and (2) meet the requirements of 11 AAC 90.443(a)(2) through (k).

Revise 11 AAC 90.443(m) to require where thick overburden occurs within the permit area, the permittee at a minimum shall (1) restore the approximate original contour and then use the remaining spoil and other waste materials to attain the lowest practicable grade, but not more than the angle of repose, (2) meet the requirements of 11 AAC 90.443(a)(2) through (k), and (3) dispose of any excess spoil in accordance with 11 AAC 90.391.

Revise 11 AAC 90.447(c)(1) to require that auger holes must be sealed within 72 hours after completion with an impervious and noncombustible material, if the holes are discharging water containing acid- or toxic-forming material, and that, if sealing is not possible within 72 hours, the discharge shall be treated commencing within 72 hours after completion to meet applicable effluent limitations and water-quality standards until the holes are sealed.

Revise 11 AAC 90.601 by adding rules at paragraphs (h) and (i) concerning inspections of abandoned sites.

Revise 11 AAC 90.629(a) to allow 30 days from the date a proposed assessment or reassessment of a penalty was received by the operator for the operator to submit a written request for review of the assessment.

Revise 11 AAC 90.631(a) to provide that an operator may contest a proposed penalty or fact of a violation by requesting a hearing in accordance with AS 27.21.250(b) or within 30 days of the date of service under 11 AAC 90.629(c), whichever is later.

Add 11 AAC 90.635(a) and (b), 90.637(a) and (b), 90.639(a) through (c), and 90.641(a) through (d), concerning assessments of an individual civil penalty against any corporate director, officer, or agent of a corporate permittee who knowingly and willfully authorized, ordered or carried out a violation, failure or refusal, to (1) identify when an individual civil penalty may be assessed, (2) determine the amount of an individual civil penalty, (3) identify procedures for assessment of an individual civil penalty, and (4) identify when payment of the penalty is due.

Revise 11 AAC 90.701(a) to provide that any person having an interest which is or may be adversely affected to have the right to petition the Commissioner to have an area designated as unsuitable for surface coal mining operations, or to have an existing designation terminated, and to state that for the purpose of this action, a person having an interest which is or may be adversely affected must demonstrate how he or she meets an “injury in fact” test by describing the injury to his or her specific affected interests and demonstrate how he or she is among the injured.

Revise 11 AAC 90.701(b) to require that petitions must be filed at the Alaska Department of Natural Resources.

Add 11 AAC 90.701(c)(1) to require that the Commissioner determine what information must be provided by the petitioner to have an area designated as unsuitable for surface coal mining operations and state the minimum requirements for a complete petition.

Add 11 AAC 90.701(c)(2) to state that the Commissioner may request that the petitioner provide other supplementary information which is readily available.

Add 11 AAC 90.701(d)(1) to state that the Commissioner shall determine what information must be provided by the petitioner to terminate designations of lands as unsuitable for surface coal mining operations and to state the minimum requirements for a complete petition for termination.

Add 11 AAC 90.701(d)(2) to state that the Commissioner may request that the petitioner provide other supplementary information which is readily available.

Revise 11 AAC 90.085(a)(5), concerning the plan for protection of the hydrologic balance, to add the requirement that the applicant's determination of probable hydrologic consequences include findings on whether the underground mining activities conducted after October 24, 1992, may result in contamination, diminution or interruption of a well or spring in existence at the time the permit application is submitted and used for domestic, drinking, or residential purposes within the permit or adjacent areas.

Revise 11 AAC 90.101(a) and (b) concerning an application for underground mining, to require that the application include a survey that identifies protected water supplies and all structures within the applicable angle of draw, a 1:12,000 scale map, identification of the pre-mining condition of all protected structures and water supplies, a narrative discussing potential impacts, and a subsidence control plan.

Add 11 AAC 90.321(e), concerning the hydrologic balance and drinking, domestic or residential water supplies, to (1) require that the permittee must promptly replace any drinking, domestic or residential water supply that is contaminated, diminished or interrupted by underground mining activities conducted after October 24, 1992, if the affected well or spring was in existence before the date the Commissioner received the permit application for the activities causing the loss, contamination or interruption, and (2) state that the baseline hydrologic information required in 11 AAC 90.043-11 AAC 90.051 will be used to determine the impact of mining activities upon the water supply.

Revise 11 AAC 90.461(b), concerning applications for underground mining, to require that the permittee must either (1) adopt measures consistent with known technology that prevent subsidence from causing material damage to the extent technologically and economically feasible, maximize mine stability, and maintain the value and reasonably foreseeable use of surface lands, or (2) adopt mining technology that provides for planned subsidence in a predictable and controlled manner and, in doing so, employ mining technology that provides for planned subsidence in a predictable and controlled manner to minimize material damage to the extent technologically and economically feasible to non-commercial buildings and occupied residential dwellings and structures related thereto, except that measures required to minimize material damage to such structures are not required, if the permittee has the written consent of their owners, or, unless the anticipated damage would constitute a threat to health or safety, the costs of such measures exceed the anticipated costs of repair.

Add 11 AAC 90.461(g), concerning subsidence control, to require that, (1) within a schedule approved by the Commissioner, the operator shall submit a detailed plan of the underground workings, and (2) the detailed plan shall include maps and descriptions, as appropriate, of significant features of the underground mine, including the size, configuration, and approximate location of pillars and entries, extraction ratios, measure taken to prevent or minimize subsidence and related damage, areas of full extraction, and other information required by the Commissioner, and to provide that, upon request of the operator, information submitted with the detailed plan may be held as confidential, in accordance with the requirements of AS 27.21.100(c).

Add 11 AAC 90.461(g)(1) and (2), concerning damage caused by subsidence within the angle of draw, to allow, if damage to any non-commercial building or occupied residential dwelling or structure related thereto occurs as a result of earth movement within an area determined by projecting a specified angle of draw from the outermost boundary of any underground mine workings to the surface of the land, a rebuttable presumption that the permittee caused the damage, which will apply to a 30-degree angle of draw unless a permittee or permit applicant, based on a site-specific analysis, requests that the presumption apply to an angle of draw different from that established in 11 AAC 90.461(g)(1) (an applicant must demonstrate and the Commissioner must determine in writing that the proposed angle of draw has a more reasonable basis than the standard set forth in 11 AAC 90.461(g)(1), based on a site-specific geotechnical analysis of the potential surface impacts of the mining operation).

Add 11 AAC 90.461(g)(3) and (4) to state that if the permittee was denied access to the land or property for the purpose of conducting the pre-subsidence survey in accordance with 11 AAC 90.101(a), no rebuttable presumption will exist, and that the presumption will be rebutted if, for example, the evidence established that: the damage predated the mining in question, the damage was proximately caused by some other factor or factors and was not proximately caused by subsidence, or the damage occurred outside the surface area within which subsidence was actually caused by the mining in question.

Add 11 AAC 90.461(g)(5) to require, in any determination whether damage to protected structures was caused by subsidence from underground mining, that all relevant and reasonably available information will be considered by the Commissioner.

Add 11 AAC 90.461(h), to set forth requirements for an additional bond amount, when subsidence-related material damage to land, structures or facilities or facilities protected under (e), or when contamination, diminution, or interruption to a water supply protected under 11 AAC 90.321(e) occurs.

Revise 11 AAC 90.901(a)(2), concerning applicability of the Alaska program, to provide an exemption from the program for extraction of coal incidental to the extraction of other minerals if the coal is 16 2/3 percent or less of the total tonnage of minerals removed and approved in accordance with 11 AAC 90.650 through 11 AAC 90.657.

Add Article 13, concerning extraction of coal incidental to the extraction of other minerals, to define at 11 AAC 90.650(a) through (e) cumulative measurement period, cumulative production, cumulative revenue, mining area, and other minerals; set forth at 11 AAC 90.651(a) through (e), application requirements and procedures; set forth at 11 AAC 90.652 minimum requirements for the contents of application for exemption; set forth at 11 AAC 90.653(a) through (c), what information submitted must be made available to the public; set forth at 11 AAC 90.654(a) and (b) which requirements must be satisfied in order to qualify for an exemption from the requirements of 11 AAC 90.901; set forth at 11 AAC 90.655(a) through (f), conditions of an exemption if approved and rights of inspection; set forth at 11 AAC 90.656(a) and (b), the ability to stockpile coal qualifying for exemption; set forth at 11 AAC 90.657(a) and (b), revocation and enforcement authority under the Alaska program; and set forth at 11 AAC 90.658(a) and (b), reporting requirements.

Revise AAC 90.911 by modifying or adding definitions for “coal mine waste,” “collateral bond,” “community or institutional building,” “cumulative impact area,” “drinking, domestic, or residential water supply,” “impounding structure,” “material damage,” “non-commercial building,” “occupied residential dwelling and structures related thereto,” “other treatment facilities,” “previously mined area,” “qualified laboratory,” “refuse pile,” “replacement water supply,” “siltation structure,” “thick overburden,” and “thin overburden.”

Alaska proposes to demonstrate that the Alaska Dam Safety regulations incorporate the NRCS TR-60 requirements concerning downstream hazard evaluations of impoundments (proposed rule 11 AAC 90.336(f)).

Alaska proposes to demonstrate the necessity for an exemption from topsoil removal where permafrost or cold weather conditions exist in the State of Alaska (proposed rule 11 AAC 90.311(g)).

Alaska proposes to demonstrate that the Commissioner can determine who should approve minimum requirements for shrub stocking and planting arrangements on land where the post mining land use is designated as fish and wildlife habitat, recreation, shelter belts, and forestry (proposed rule 11 AAC 90.457(c)(3)).

Alaska proposes to demonstrate that no prime farmlands exist in the State of Alaska (no associated proposed rule language).

Alaska proposes to demonstrate that the certified statement that all applicable reclamation activities have been accomplished in accordance with the requirements of AS 27.21, 11 AAC 90, and the approved reclamation plan (required from the applicant in the application for each phase of bond release) need not be notarized to be enforceable (proposed rule 11 AAC 90.211(a)).

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Alaska program.

Send your written or electronic comments to OSM at the address given above. Your comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. 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 an address other than the Denver Field Division may not be logged in.

Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: SATS No. AK-006” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Denver Field Division at 303-844-1400 ext. 1424.

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their 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 review in their entirety.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t. on August 3, 2004. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be 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 everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

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

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that 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 State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian Tribes and have determined that the rule does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. The rule does not involve or affect Indian Tribes in any way.

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.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

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 State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

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; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (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 State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

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 state submittal, which is the subject of this rule, is based upon counterpart federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

I. Background on the Indiana Program and Indiana Plan II. Description of the Proposed Amendment III. Public Comment Procedures IV. Procedural Determinations I. Background on the Indiana Program and Indiana Plan

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Indiana program effective July 29, 1982. You can find background information on the Indiana program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Indiana program in the July 26, 1982, Federal Register (47 FR 32071). You can also find later actions concerning the Indiana program and program amendments at 30 CFR 914.10, 914.15, 914.16, and 914.17.

The Abandoned Mine Land Reclamation program was established by Title IV of 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 the basis of these criteria, the Secretary of the Interior approved the Indiana plan effective July 29, 1982. You can find background information on the Indiana plan, including the Secretary's findings, the disposition of comments, and the approval of the plan in the July 26, 1982, Federal Register (47 FR 32108). You can find later actions concerning the Indiana plan and amendments to the plan at 30 CFR 914.25.

By letter dated June 2, 2004 (Administrative Record No. IND-1728), the Indiana Department of Natural Resources (IDNR) sent us House Enrolled Act 1203 (HEA 1203) as an amendment to its program and plan under SMCRA (30 U.S.C. 1201 et seq. ). HEA 1203 contains numerous amendments to the State statutes, but only those that pertain to the Indiana program or plan are discussed below. The IDNR sent the amendment to us at its own initiative. Section 1 of HEA 1203 amends Indiana Code (IC) 14-8-2-117.3, concerning the definition of “Governmental entity.” Sections 26 and 27 of HEA 1203 amend IC 14-34-6-7 and IC 14-34-6-10, respectively, concerning performance bond release. Sections 28, 29, and 30 of HEA 1203 amend IC 14-34-8-4, IC 14-34-8-6, and IC 14-34-8-11, respectively, concerning the Indiana bond pool. Section 31 of HEA 1203 adds IC 14-34-19-15, concerning procedures for abandoned mine land reclamation projects receiving less than 50 percent government funding. Finally, Section 32 of HEA 1203 adds a definition for “government financed construction.” Below is a summary of the changes proposed by Indiana. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES.

Section 1 of HEA 1203 amended the definition of “Governmental entity” at IC 14-8-2-117.3 by adding a reference to IC 14-34-19-15, which concerns procedures for abandoned mine land reclamation projects receiving less than 50 percent government funding. The revised definition reads as follows:

a. Section 26 of HEA 1203 amended IC 14-34-6-7 to authorize the director of the Department of Natural Resources to initiate an application for the release of a performance bond. It designated the existing text as subsection (a) and added new subsection (b) to read as follows:

b. Section 27 of HEA 1203 amended IC 14-34-6-10(b)(2) by removing the word “permittee's.” The revised subdivision reads as follows:

a. Section 28 of HEA 1203 amended IC 14-34-8-4(g) and (h) by adding the phrase “unless the operator has replaced all bond pool liability with bonds acceptable under IC 14-34-6-1” to the end of each paragraph. With the addition of the phrase, a mine operator may withdraw from the bond pool by replacing bond pool liability with bonds acceptable under the surface coal mining and reclamation bonding law. The revised paragraphs read as follows:

b. Section 29 of HEA 1203 amended IC 14-34-8-6 to authorize the director of the Department of Natural Resources to require operators to withdraw from the surface coal mine reclamation bond pool under certain circumstances. It amended IC 14-34-8-6(a) by changing a reference from “subsection (b)” to “subsection (c).” It redesignated subsections (b) and (c) as IC 14-34-8-6(c) and (d) and added a new subsection (b) to read as follows:

c. At IC 14-34-8-11, Section 30 of HEA 1203 amended membership and appointment authority of the surface coal mine reclamation bond pool committee by revising subsections (a), (b), (e), and (f) to read as follows:

At IC 2004-71-32, Section 32 of HEA 1203 added a definition for “government financed construction” and its associated requirements to read as follows:

Section 31 of HEA 1203 added IC 14-34-19-15 to require specific findings and documentation for certain mine land reclamation projects funded by a governmental entity. The new statute reads as follows:

Under the provisions of 30 CFR 732.17(h) and 30 CFR 884.15(a), we are seeking your comments on whether the amendment satisfies the applicable program and plan approval criteria of 30 CFR 732.15 and 30 CFR 884.14, respectively. If we approve the amendment, it will become part of the Indiana program or plan, as noted in Section II of this document.

Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. 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 an address other than the Indianapolis Field Office may not be logged in.

Please submit electronic comments as an ASCII or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: Docket No. IN-155-FOR” and your name and return address in your electronic message. If you do not receive a confirmation that we have received your electronic message, contact the Indianapolis Field Office at (317) 226-6700.

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their 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 review in their entirety.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t., on August 3, 2004. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be 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 everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

The provisions in the rule based on counterpart Federal regulations do not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations. The revisions made at the initiative of the State that do not have Federal counterparts have also been reviewed and a determination made that they do not have takings implications. This determination is based on the fact that the provisions have no substantive effect on the regulated industry.

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

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that 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 State regulatory programs and program amendments or State and Tribal abandoned mine land reclamation plans and plan amendments because each program and plan is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met. Under section 405 of SMCRA (30 U.S.C. 1235) and the Federal regulations at 30 CFR 884.14 and 884.15, decisions on proposed State and Tribal abandoned mine land reclamation plans and plan amendments submitted by the States or Tribes must be based solely on a determination of whether the submittal meets the requirements to Title IV of SMCRA (30 U.S.C. 1231-1243) and its implementing Federal regulations and whether the other requirements of 30 CFR part 884 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations and abandoned mine land reclamation programs. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Section 405(d) of SMCRA requires State abandoned mine land reclamation programs to be in compliance with the procedures, guidelines, and requirements established under SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This determination is based on the fact that the Indiana program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands and the Indiana plan does not regulate coal mined lands eligible for reclamation under Title IV of SMCRA on Indian lands. Therefore, the Indiana program and plan have no effect on Federally-recognized Indian tribes.

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.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Also, agency decisions on proposed State and Tribal abandoned mine land reclamation plans and plan amendments are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior certifies that a portion of the provisions in 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. ) because they are based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this part of the rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. The Department of the Interior also certifies that the provisions in this rule that are not based upon counterpart Federal regulations 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 determination is based upon the fact that the provisions are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.

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; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (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 a portion of the State provisions are based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. For the portion of the State provisions that is not based upon counterpart Federal regulations, this determination is based upon the fact that the State provisions are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.

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 a portion of the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. For the portion of the State provisions that is not based upon counterpart Federal regulations, this determination is based upon the fact that the State provisions are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Indiana program effective July 29, 1982. You can find background information on the Indiana program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Indiana program in the July 26, 1982, Federal Register (47 FR 32071). You can also find later actions concerning the Indiana program and program amendments at 30 CFR 914.10, 914.15, 914.16, and 914.17.

By letter dated May 19, 2004 (Administrative Record No. IND-1726), Indiana sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Indiana sent the amendment in response to a June 17, 1997, letter (Administrative Record No. IND-1575) that we sent to Indiana in accordance with 30 CFR 732.17(c) and in response to the required program amendments at 30 CFR 914.16(f), (s), and (hh) through (mm). The amendment also includes changes made at Indiana's own initiative. Below is a summary of the changes proposed by Indiana. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES.

Indiana revised its definition of “affected area” and added definitions for “lands eligible for remining” and “unanticipated event or condition” as discussed below.

1. At 312 IAC 25-1-8, Indiana revised its definition of “affected area” to read as follows:

2. At 312 IAC 25-1-75.5, Indiana added a definition for “lands eligible for remining” to read as follows:

3. At 312 IAC 25-1-155.5, Indiana added a definition for “unanticipated event or condition” to read as follows:

Indiana added the language “shall be submitted with the application” at the end of subsections (d), (e), and (f).

Indiana revised subdivision (b)(4) to require a demonstration of the suitability of topsoil substitutes or supplements under 312 IAC 25-6-11(c) to include an analysis of the total depth of the soil.

1. Indiana revised the first sentence of subsection (a) to read as follows:

2. Indiana revised subsection (c) by requiring permanent and temporary impoundments to be designed to comply with both the requirements of 312 IAC 25-6-20 and the requirements of the Mine Safety and Health Administration at 30 CFR 77.216-1 and 30 CFR 77.216-2.

3. Indiana added a new subsection (d) to require refuse piles be designed to comply with 312 IAC 25-6-36 through 312 IAC 25-6-39. Indiana redesignated existing subsection (d) as subsection (e).

4. Indiana added new subsection (f) to read as follows:

5. Indiana redesignated existing subsection (e) as subsection (g) and added introductory language to read as follows: “If the proposed siltation structure, water impoundment, coal processing waste dam, or embankment is permanent and the: * * *” Indiana also removed the word “the” from the beginning of subdivisions (g)(1) through (3) and removed the last sentence from subdivision (g)(3).

1. Indiana revised the first sentence of subsection (a) to read as follows:

2. Indiana revised subsection (c) by requiring permanent and temporary impoundments to be designed to comply with the requirements of 312 IAC 25-6-84, 30 CFR 77.216-1, and 30 CFR 77.216-2.

3. Indiana added a new subsection (d) to require refuse piles to be designed to comply with 312 IAC 25-6-98 through 312 IAC 25-6-102. Indiana redesignated existing subsection (d) as subsection (e).

4. Indiana added new subsection (f) to read as follows:

5. Indiana redesignated existing subsection (e) as subsection (g) and added introductory language to read as follows: “If the proposed siltation structure, water impoundment, coal processing waste dam, or embankment is permanent and the: * * *” Indiana also removed the word “the” from the beginning of subdivisions (g)(1) through (3).

1. In subdivision (d)(1), Indiana changed its references to the United States Soil Conservation Service to the United States Natural Resources Conservation Service (NRCS).

2. Indiana added the following new subsections (e) and (f):

At 312 IAC 25-4-105.5, Indiana added the following permitting requirements for lands eligible for remining:

1. Indiana added new subsection (f) to require information on the nature and location of archaeological resources on public and Indian land, required under 16 U.S.C. 470aa through 16 U.S.C. 47mm, to be held confidential.

2. Indiana redesigned existing subsection (f) as subsection (g) and revised the first sentence to allow a person who opposes or seeks disclosure of confidential information to submit a request under section 25-4-110.

Indiana added new subsection (d) to read as follows:

Indiana added the following requirements for lands eligible for remining at new subdivision (a)(13):

Indiana revised subdivision (4) to require the permittee to allow the authorized representatives of the Secretary of the Interior to also have the right of entry to a mine site for the purpose of conducting inspections.

Indiana added the following new requirements for lands eligible for remining at the end of subsection (b):

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Indiana program effective July 29, 1982. You can find background information on the Indiana program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Indiana program in the July 26, 1982, Federal Register (47 FR 32071). You can also find later actions concerning the Indiana program and program amendments at 30 CFR 914.10, 914.15, 914.16, and 914.17.

By letter dated June 2, 2004 (Administrative Record No. IND-1727), Indiana sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Indiana sent the amendment at its own initiative. Below is a summary of the changes proposed by Indiana. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES .

At subsection (c), Indiana proposes to remove a requirement that revised blasting schedules be approved by the director of the Department of Natural Resources before they are published and distributed.

At subsection (g), Indiana proposes to allow a person seeking a blaster certificate who fails an examination to retake the examination two times without reapplying. If the person fails the examination three times, he or she must retake the certified blaster training course.

1. Indiana proposes to add new subdivision (b)(3) to require certified blasters seeking renewal of their certification to obtain a minimum of 15 hours of additional training and to provide documentation of that training. The training must be approved by the Department of Natural Resources.

2. Indiana proposes to revise subsection (c) to require blasters to retake the examination and demonstrate completion of 15 hours of additional training in the previous 36 months when the certification is not renewed for more than 1 year after expiration. When the certification is not renewed for more than five years after expiration, the certification is not renewable.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.

Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. 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 an address other than the Indianapolis Field Office may not be logged in.

Please submit Internet comments as an ASCII or Word file avoiding the use of special characters and any form of encryption. Please also include “Docket No. IN-154-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Indianapolis Field Office at (317) 226-6700.

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their 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 review in their entirety.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t., on August 3, 2004. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be 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 everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the administrative record.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

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

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that 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 State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This determination is based on the fact that the Indiana program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Indiana program has no effect on Federally-recognized Indian tribes.

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.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

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 State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

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; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (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 State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

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 State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program on May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Kentucky program in the May 18, 1982, Federal Register (47 FR 21434). You can also find later actions concerning Kentucky's program and program amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16, and 917.17.

By letter dated May 14, 2004, Kentucky sent us an amendment to its program, ([KY-247-FOR], administrative record No. KY-1624), under SMCRA (30 U.S.C. 1201 et seq. ). Kentucky submitted House Bill (HB) 537 promulgated by the 2004 Kentucky General Assembly. It amends the Kentucky Revised Statutes (KRS) at Section 1 of 350.280. A summary of the amended language follows.

Subsection (1)(b) —the following quoted language is deleted from the conditions under which an easement of necessity is recognized if a notice or order directing abatement of a violation on the basis of imminent danger to health or safety of the public or significant imminent environmental harm: “and the violation involves an order of cessation and immediate compliance or an order to abate and alleviate in which the cabinet directs the permittee or operator to begin immediate abatement of the violation.”

Subsection(1)(b)1 —the following quoted language is added to the existing provisions to specify that an easement of necessity becomes effective and a permittee or operator is authorized to enter a property to take immediate action to abate a violation if he/she provides: “a plan of action reasonably calculated to result in abatement of the violation, repair of the damage, and restoration of the property, and provides proof of liability insurance and workers' compensation insurance covering any accidents or injuries occurring on the property during the remedial work.”

Subsection (1)(b)3 —this subsection has been revised to require, in part, that a permittee or operator “diligently pursue abatement of the violation” and obtain an appraisal completed by a real estate appraiser “certified under KRS Chapter 324A” of damages that have resulted from the violation. The original language describing the damages “as abated, and those that are likely to occur to the property when the permittee or operator enters the property in order to abate the violation” is deleted. The appraisal must be completed and provided to the property owner or legal occupant within three days of abatement of the violation.

Subsection(1)(c) —the following quoted language is deleted from the description of the appraisal of damages: “that will result from the violation, as abated, and those that are likely to occur to the property when the permittee or operator enters the property in order to abate the violation.”

Subsection(1)(c)1 —this subsection requires that an appraiser be certified and that the appraisal be completed and submitted to the property owner or legal occupant within three days of “abatement of the violation” (originally “entry on the property”).

Subsection(1)(c)2 —this subsection requires that the property owner or legal occupant shall accept or reject the appraisal in writing within seven days of receipt of the completed appraisal (originally three days).

Subsection (1)(c)3 —this subsection requires that a real estate appraiser hired by the property owner of legal occupant be certified under KRS Chapter 324A and that the appraisal “be completed and provided to the permittee or operator within thirty days of receipt of the permittee's or operator's completed appraisal.” Deleted is a requirement that the appraisal include the damages, including loss of use, from the violation “as abated, and those that are likely to occur to the property if the permittee or operator is allowed to enter the property in order to abate the violation.”

Subsection (1)(c)4 —this subsection requires that if the property owner or legal owner “accepts the permittee's or operator's appraisal, the permittee or operator shall promptly pay the property owner or legal occupant the amount of damages reflected therein.” The original language (now deleted) required that if the property owner or legal occupant has the appraisal done, it shall be completed and provided to the permittee or operator within seven days of receipt of the permittee's or operator's completed appraisal.

Subsection(1)(e) —this subsection specifies that if the property owner or legal occupant does not accept or reject the permittee's or operator's appraisal and offer of funds for damages “within the time specified in subparagraph 2 of paragraph (c) of this subsection, the appraisal and offer shall be deemed accepted.” The original requirement that the operator or permittee pay the appraised damages to the circuit court within three business days of the nonacceptance, with the funds placed in an interest-bearing account until resolution, is deleted.

Subsection (1)(f) —this new subsection requires that “the appraiser shall calculate the damages to the property, including loss of use, that have resulted from the violation which the owner or the legal occupant shall be entitled to under this subsection as the difference between the fair market value of the property before the violation and after the abatement of the violation, plus the reasonable rental value of the property during the period of time between the effective date of the easement of necessity and the date of the abatement of the violation.”

Subsection 2 —this subsection pertains to violations other than those described in subsection (1), and requires that a real estate appraiser be certified under KRS Chapter 324. He/she will appraise damages that “likely” will result from a violation. This replaces the original language that the appraiser appraise damages that will result from the violation “as abated, and those that are likely to occur to the property if the permittee or operator is allowed to enter the property in order to abate the violation.” The same language is replaced in subsection (3)(a)4.

Subsection (3)(a) —this subsection clarifies that the referenced appraisal pertains to that specified in subsection (2).

Subsection (3)(a)4 —this subsection requires that the operator or permittee pay the property owner or legal occupant an entry fee “calculated as one-half of the amount of the appraisal or the sum of five hundred dollars, whichever is greater, for the privilege to enter the property and conduct” the appraisal.

Subsection (3)(b) —this new subsection requires that “upon payment of the entry fee by the permittee or operator, an easement of necessity shall be recognized on behalf of the permittee or operator for limited purposes of abating the violation and the operator or permittee shall be authorized to enter the property to undertake immediate action to abate the violation, provided that the landowner has been provided a plan of action reasonably calculated to result in abatement of the violation, repair of the damage, and restoration of the property, and the permittee or operator provides proof of liability insurance and workers' compensation covering any accidents or injuries occurring on the property during the remedial work.”

Subsection (3)(c) —this subsection states that “following the effective date of the easement of necessity to abate the violation, the procedures set forth in subsection (1)(c) through (f) of this section shall apply. The entry fee shall be deducted from any subsequent payment deemed due the property owner or legal occupant as a result of the post-abatement appraisal or appraisals. If the entry fee exceeds the amount of all appraisals, the property owner or legal occupant shall be entitled to retain the entry fee in its entirety.” The original language, “when the easement takes effect, the property owner or legal occupant shall allow access for the permittee's or operator's certified real estate appraiser or other qualified appraiser to conduct the appraisal,” has been deleted.

Subsection (4) —this subsection specifies that “nothing in this section shall affect any person's right to bring a civil suit action for damages, including punitive and compensatory damages, or other appropriate relief.” The original language in subsections (4), (5), (6), (7), and (8) has been deleted. These subsections pertained to procedures for the appraisal of damages addressed in this amendment in revised subsection (1)(c).

The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the program.

Send your written comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. In the final rulemaking, we will not consider or include in the administrative record any comments received after the time indicated under DATES or at locations other than the Lexington Field Office.

Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: KY-247-FOR/Administrative Record No. KY-1624” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Lexington Field Office at (859) 260-8400.

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their 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 review in their entirety.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on August 3, 2004. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be 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 everyone scheduled to speak and others present in the audience who wish to speak, have been heard. If you are disabled and need a special accommodation to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

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

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 State regulatory programs and program amendments since each such program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal program involving Indian Tribes.

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.

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior has determined 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 State submittal that is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

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; (b) Will not cause a major increase in costs or prices for consumers, individual industries, geographic regions, or Federal, State or local governmental agencies; and (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 State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * * and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Maryland program on December 1, 1980. You can find background information on the Maryland program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 1, 1980, Federal Register (45 FR 79431). You can also find later actions concerning Maryland's program and program amendments at 30 CFR 920.12, 920.15, and 920.16.

By letter dated May 4, 2004 (Administrative Record Number MD-583-11), Maryland sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). The amendment revises COMAR provisions concerning valid existing rights.

The full text of the program amendment is available to you to read at the locations listed above under ADDRESSES . Specifically, Maryland proposes the following amendments to COMAR.

This definition is amended at paragraph (7)(a)(i) by deleting the phrase “on August 3, 1977” and by adding in its place the words “at the time the land came under the protection of Environment Article, § 15-505(b)(2), Annotated Code of Maryland or Regulation .02 of the chapter.”

Subparagraph (7)(a)(ii) is amended by several deletions and additions of language as follows. In the first sentence, the phrase “these lands either had” is revised to read “the land had.” The following words are added immediately following the revised phrase “the land had:” “obtained all permits and other authorizations required to conduct surface coal mining operations or had.” Further along in the first sentence, “good faith efforts” is amended to be “good faith effort.” Also in the first sentence, the words “State and federal permits” are deleted. The words “permits and authorizations” are added immediately before the words “to conduct the operations.” The word “those” is deleted and replaced by the word “the.” The words “lands, on or before” are revised to read “land before.” The date “August 3, 1977” is deleted, and the following words are added in their place: “the land came under the protection of Environment Article, § 15-505(b)(2), Annotated Code of Maryland or Regulation .02 of this chapter and at a minimum had submitted an application for any permit required under this subtitle.” The word “coal” is being deleted following the phrase “to the Bureau that the” and the word “land” is added in its place. The word “both” is deleted from the phrase “is both needed for.” The words “an on-going” are being deleted immediately following the words “adjacent to.” The words “obtained before August 3, 1977” are being deleted at the end of the sentence, and those words are being replaced by the following words:

As amended, COMAR 26.20.10.01.B(7)(a)(ii) provides as follows:

Subparagraph (7)(b)(i) is being amended by adding the word “properly” between the word “A” and the word “recorded” at the beginning of the sentence. The word “recorded” immediately before the word “easement” is deleted and is replaced by the word “or.” The words “or a permit,” “coal haul,” and “recorded as of August 3, 1977; or” are deleted following the word “easement.” New language is added at the end of this provision. As amended, Subparagraph (7)(b)(ii) provides as follows:

Subparagraph (7)(b)(ii) is being amended by deleting the words “other” and “as of August 3, 1977,” and adding new language. As amended, Subparagraph (7)(b)(ii) provides as follows:

Subparagraphs (7)(b)(iii) and (iv) are new and provide as follows:

This provision is new and provides as follows:

The introductory paragraph to this provision is amended by adding the words “as determined under Regulation .07 of this chapter, or an exception for existing operation under Regulation .04 of this chapter” immediately after the words “valid existing rights.” In addition, the words “after August 3, 1977” and “unless those operations were being conducted on August 3, 1977” are deleted. As amended, the introductory paragraph to this provision provides as follows:

Subparagraph 26.20.10.02.C.(1) is amended by deleting the words “join this” and replacing those words with the words “are located within the.” Also, the words “in order to join the public road” are added immediately following the words “right-of-way line.” As amended, Subparagraph 26.20.10.02.C.(1) provides as follows:

Subparagraph 26.20.10.02.C.(2) is amended by adding the word “closed” immediately following the word “relocated.”

Subparagraph 26.20.10.03.A. is amended by adding the words “application for a” immediately following the word “complete.” In addition, the word “application” is deleted immediately following the word “permit” and the words “for a surface coal mining operation or for a revision of the boundaries of a surface coal mining operation permit” are added in place of the deleted word. Also, the words “review the application to” are added immediately following the words “the Bureau shall.” As amended, Subparagraph 26.20.10.03.A. provides as follows:

Subparagraph 26.20.10.03.B. is amended by adding the words “any portion of” immediately following the words “Bureau shall reject.” In addition, the words “if the applicant has no valid existing rights for the area, or if the operation did not exist on August 3, 1977” are deleted and replaced by new language. As amended, Subparagraph 26.20.10.03.B. provides as follows:

Subparagraph 26.20.10.03.C. is amended by revising the following regulation citations: “.02E and F” is changed to “.02F and G.”

Subparagraph 26.20.10.03.D(2) is amended by adding the words “or close” immediately following the words “would relocate.” In addition, the words “and provide a public comment period and opportunity to request a public hearing” are added at the end of this provision. As amended, Subparagraph 26.20.10.03.D(2) provides as follows:

Subparagraph 26.20.10.03.H. is amended by deleting the word “public” immediately following the words “adversely affect any” and adding in its place, the words “publicly owned.” In addition, the words “publicly owned” are deleted immediately before the words “places included on.”

This provision is new and provides as follows:

This provision is new and provides as follows:

This provision is new and provides as follows:

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Maryland program.

Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We may 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 an address other than the Appalachian Regional Coordinating Center may not be logged in.

Please submit Internet comments as an ASCII, Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: SATS NO. MD-054-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Appalachian Regional Coordinating Center at (412) 937-2153.

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their 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.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on August 3, 2004. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be 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 everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the Administrative Record.

In this rule, the State is adopting valid existing rights standards that are similar to the standards in the Federal definition at 30 CFR 761.5. Therefore, this rule has the same takings implications as the Federal valid existing rights. The takings implications assessment for the Federal valid existing rights rule appears in Part XXIX.E of the preamble to that rule. See 64 FR 70766, 70822-27, December 17, 1999.

This rule is exempt from review by the Office of Management and Budget under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that 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 State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The basis for this determination in our decision is on a State regulatory program and does not involve a Federal regulation involving Indian lands.

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.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

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 State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

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; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (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 analysis performed under various laws and executive orders for the counterpart Federal regulations.

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 analysis performed under various laws and executive orders for the counterpart Federal regulations.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Texas program effective February 16, 1980. You can find background information on the Texas program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Texas program in the February 27, 1980, Federal Register (45 FR 12998). You can also find later actions concerning the Texas program and program amendments at 30 CFR 943.10, 943.15 and 943.16.

By letter dated June 4, 2004 (Administrative Record No. TX-658), Texas sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Texas sent the amendment that revises the Railroad Commission of Texas' (Commission) rules at its own initiative. Below is the full text of the proposed revised regulation.

(a) Each application for a surface coal mining and reclamation permit or renewal or revision of a permit shall be accompanied by a fee. The initial application fee and the application fee for renewal of a permit may be paid in equal annual installments during the term of the permit. The fee schedule is as follows:

(1) Application for a permit: $5,000.

(2) Application for revision of a permit: $500.

(3) Application for renewal of a permit: $3,000.

(b) In addition to application fees required by this section, each permittee shall pay to the Commission an annual fee in the amount of $390 for each acre of land within the permit area on which the permittee actually conducted operations for the removal of coal and lignite during the calendar year. The total amount of this fee is due and payable not later than March 15th of the year following the year of removal operations. For calendar year 2004 only, the annual fee shall be calculated as follows: for each acre of land on which the permittee actually conducted operations for the removal of coal and lignite during the period January 1, 2004 through August 31, 2004, the permittee shall pay to the Commission an annual fee of $300 per acre. For each acre of land on which the permittee actually conducted operations for the removal of coal and lignite during the period September 1, 2004, through December 31, 2004, the permittee shall pay to the Commission an annual fee of $390 per acre.

(c) Fees paid to the Commission under this section shall be deposited in the State treasury and credited to the general revenue fund.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.

Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. 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 an address other than the Tulsa Field Office may not be logged in.

Please submit Internet comments as an ASCII or Word file avoiding the use of special characters and any form of encryption. Please also include “Docket No. TX-053-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Tulsa Field Office at (918) 581-6430.

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their 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 review in their entirety.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., c.d.t. on August 3, 2004. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be 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 everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the administrative record.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

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

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that 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 State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This determination is based on the fact that the Texas program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Texas program has no effect on Federally-recognized Indian tribes.

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.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

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 State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

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; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (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 State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

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 State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (04-007), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know that your submission reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Waterways Management Branch at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a separate notice in the Federal Register .

Since the September 11, 2001 terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia and Flight 93, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. In addition, the ongoing hostilities in Afghanistan and Iraq have made it prudent for U.S. ports to be on a higher state of alert because Al-Qaeda and other organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

The threat of maritime attacks is real as evidenced by the attack on the USS Cole and the subsequent attack in October 2002 against a tank vessel off the coast of Yemen. These threats manifest a continuing threat to U.S. assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002) that the security of the U.S. is endangered by the September 11, 2001 attacks and that such aggression continues to endanger the international relations of the United States. See also Continuation of the National Emergency with Respect to Certain Terrorist Attacks (67 FR 58317, September 13, 2002), and Continuation of the National Emergency with Respect to Persons Who Commit, Threaten To Commit, Or Support Terrorism (67 FR 59447, September 20, 2002). The U.S. Maritime Administration (MARAD) in Advisory 02-07 advised U.S. shipping interests to maintain a heightened status of alert against possible terrorist attacks. MARAD more recently issued Advisory 03-05 informing operators of maritime interests of increased threat possibilities to vessels and facilities and a higher risk of terrorist attack to the transportation community in the United States. The ongoing foreign hostilities have made it prudent for U.S. ports and waterways to be on a higher state of alert because the Al-Qaeda organization and other similar organizations have declared and ongoing intention to conduct armed attacks on U.S. interests worldwide.

In its effort to thwart terrorist activity, the Coast Guard has increased safety and security measures on U.S. ports and waterways. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. The Coast Guard also has authority to establish security zones pursuant to the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq. ) and implementing regulations promulgated by the President in subparts 6.01 and 6.04 of part 6 of title 33 of the Code of Federal Regulations.

In this particular proposed rulemaking, to address the aforementioned security concerns and to take steps to prevent the catastrophic impact that a terrorist attack against the MOTCO facility would have on the public, we propose to establish three security zones in the navigable waters of the United States within 500 yards of any MOTCO pier, or piers, where military onload or offload operations are taking place to safeguard vessels, cargo and crew. These proposed security zones are necessary to safeguard the MOTCO terminal and the surrounding property from sabotage or other subversive acts, accidents or criminal acts. These zones are also necessary to protect military operations from compromise and interference and to specifically protect the people, ports, waterways, and properties of the Port Chicago and Suisun Bay areas. Due to heightened security concerns and the catastrophic impact a terrorist attack on this facility would have on the public, environment, transportation system, surrounding areas, and nearby communities, establishing security zones is a prudent and necessary action for this facility.

Previously, for each military operation at MOTCO, a temporary final rule would be written and published to establish a temporary security zone around the entire MOTCO facility, and the maritime public would be advised of the security zone using a Broadcast Notice to Mariners (BNM). In this rulemaking, we propose to create three smaller security zones that would surround only the pier, or piers, being used for a military onload or offload. This would accomplish the same goal of providing additional security for the facility during military operations, and would continue the practice of notifying mariners of the security zone(s), but would remove the need to publish a temporary final rule in the Federal Register each time an operation occurs. This proposed rule would add § 165.1199, Security Zones; Suisun Bay, Concord, California, to Title 33 of the Code of Federal Regulations.

The Coast Guard proposes to establish fixed security zones encompassing the navigable waters, extending from the surface to the sea floor, within 500 yards around each of the three MOTCO piers, any combination of which would be enforced by the COTP during the onloading or offloading of military equipment and ordnance, depending on which pier, or piers, are being used. There are three existing piers at the MOTCO facility. Originally there were four piers, numbered One through Four from east to west, but Pier One was destroyed in an explosion in 1944. Therefore, Pier Two is now the easternmost pier. The proposed 500-yard security zone around Pier Two would encompass portions of both the Roe Island Channel and the Port Chicago Reach sections of the deepwater channel. The proposed 500-yard security zone around Pier Three would encompass a small portion of the Roe Island Channel and most of the Port Chicago Reach section of the deepwater channel. The proposed 500-yard security zone around Pier Four would encompass portions of both the Port Chicago Reach and the Middle Ground West Reach sections of the deepwater channel. If more than one pier is involved in onload or offload operations at the same time, the proposed security zone for each of the piers being used would be enforced.

Prior to the commencement of a military onload or offload, the COTP San Francisco Bay will cause notification of enforcement of the security zone(s) to be made by all appropriate means to effect the widest publicity among the affected segments of the public, including, but not limited to, issuing a Local Notice to Mariners and a Broadcast Notice to Mariners. In addition, Coast Guard Group San Francisco Bay maintains a telephone line that is maintained 24 hours a day, 7 days a week. The public can contact Group San Francisco Bay at (415) 399-3530 to obtain information concerning enforcement of this rule. By the same means, the COTP will also cause notice of the suspension of enforcement of the security zone(s) in this rule to be made. Upon notice of suspension of enforcement, all persons and vessels are granted general permissions to enter, move within and exit the security zone(s).

In addition to restricting access to the pier, or piers, where military operations are taking place, each of these proposed security zones would provide necessary standoff distance for blast and collision, surveillance and detection perimeter, and a margin of response time for security personnel. This proposed rule, for security reasons, would prohibit entry of any vessel or person inside any of the security zones without specific authorization from the Captain of the Port or his designated representative.

Vessels or persons violating this section would be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 U.S.C. 1232, any violation of the security zones described herein, is punishable by civil penalties (not to exceed $32,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000) and in rem liability against the offending vessel. Any person who violates this section using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation also faces imprisonment up to 12 years. Vessels or persons violating this section are also subject to the penalties set forth in 50 U.S.C. 192: Seizure and forfeiture of the vessel to the United States, a maximum criminal fine of $10,000, and imprisonment up to 10 years.

The Captain of the Port would enforce these proposed zones and may enlist the aid and cooperation of any Federal, State, county, municipal, and private agency to assist in the enforcement of the regulation. This regulation is proposed under the authority of 33 U.S.C. 1226 in addition to the authority contained in 50 U.S.C. 191 and 33 U.S.C. 1231.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this proposed rule restricts access to the waters encompassed by the security zones, the effect of this proposed rule would not be significant because: (i) The zones would encompass only small portions of the waterway; (ii) smaller vessels would be able to pass safely around the zones; and (iii) larger vessels may be allowed to enter these zones on a case-by-case basis with permission of the Captain of the Port or his designated representative.

The sizes of the proposed zones are the minimum necessary to provide adequate protection for MOTCO, vessels engaged in operations at MOTCO, their crews, other vessels operating in the vicinity, and the public. The entities most likely to be affected are commercial vessels transiting to or from Suisun Bay via the Port Chicago Reach section of the channel and pleasure craft engaged in recreational activities and sightseeing.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule may affect the following entities, some of which may be small entities: The owners and operators of vessels intending to anchor or transit to or from Suisun Bay via the Port Chicago Reach section of the channel, and owners and operators of private vessels intending to fish or sightsee near the MOTCO facility.

The proposed security zones would not have a significant economic impact on a substantial number of small entities for several reasons: (i) Although the security zones would occupy sections of the navigable channel adjacent to the Marine Ocean Terminal Concord (MOTCO), vessels may receive authorization to transit through the zones by the Captain of the Port or his designated representative on a case-by-case basis, (ii) small vessel traffic would be able to pass safely around the area, and (iii) vessels engaged in recreational activities, sightseeing and commercial fishing would have ample space outside of the security zones to engage in these activities. Small entities and the maritime public would be advised of these security zones via public notice to mariners.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Doug Ebbers, Waterways Management Branch, U.S. Coast Guard Marine Safety Office San Francisco Bay, at (510) 437-3073.

This proposed rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this proposed rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because it would establish security zones.

A draft “Environmental Analysis Check List” and a draft “Categorical Exclusion Determination” (CED) will be available in the docket where indicated under ADDRESSES. Comments on this section will be considered before we make the final decision on whether the rule should be categorically excluded from further environmental review.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

1. Submitting CBI. Do not submit this information to EPA through EDOCKET, regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI). In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified.

The list of HAP includes a wide variety of organic and inorganic substances released from large and small industrial operations, fossil fuel combustion, gasoline and diesel-powered vehicles, and many other sources. The HAP have been associated with a wide variety of adverse health effects, including cancer, neurological effects, reproductive effects, and developmental effects. The health effects associated with the various HAP may differ depending upon the toxicity of the individual HAP and the particular circumstances of exposure, such as the amount of chemical present, the length of time a person is exposed, and the stage in life of the person when the exposure occurs. The list of HAP, which includes MIBK, can be found in section 112(b)(1) of the CAA. The HAP list provides the basis for research, regulation, and other related EPA activities under the CAA.

A delisting petition is a formal request to EPA from an individual or group to remove a specific HAP from the HAP list. The removal of a HAP from the list eliminates it from consideration in EPA's program to promulgate national, technology-based emissions control standards. This technology-based standards program is commonly referred to as the Maximum Achievable Control Technology (MACT) program.

Petitions to add or delete chemicals from the HAP list are allowed under section 112(b)(3)(A) of the CAA. The CAA specifies that any person may petition the Administrator to modify, by addition or deletion, the list of HAP. The EPA Administrator is required under section 112(b)(3)(A) of the CAA to either grant or deny a petition to delist a specific HAP within 18 months of the receipt of a complete petition.

To delete a substance from the HAP list, CAA section 112(b)(3)(C) requires that the petitioner must provide adequate data on the health and environmental effects of the substance to determine that emissions, ambient concentrations, bio-accumulation or deposition of the substance may not reasonably be anticipated to cause any adverse effects to human health or adverse environmental effects.

The petition review process proceeds in two phases: A completeness determination and a technical review. During the completeness determination, we conduct a broad review of the petition to determine whether all of the necessary subject areas are addressed. In addition, we determine if adequate data, analyses, and evaluation are included for each subject area. Once the petition is determined to be complete, we place a notice of receipt of a complete petition in the Federal Register . That notice announces a public comment period on the petition and starts the technical review phase of our decision-making process. The technical review determines whether the petition has satisfied the necessary requirements and can support a decision to delist the HAP. All comments and data submitted during the public comment period are considered during the technical review.

The decision to either grant or deny a petition is made after a comprehensive technical review of both the petition and the information received from the public to determine whether the petition satisfies the requirements of section 112(b)(3)(C) of the CAA. If the Administrator decides to grant a petition, a proposal will be published in the Federal Register announcing that decision and the opportunity for public comment. That notice would propose a modification of the HAP list and present the reasoning for doing so. However, if the Administrator decides to deny a petition, a notice setting forth an explanation of the reasons for denial will be published instead. A notice of denial constitutes final Agency action of nationwide scope and applicability, and is subject to judicial review as provided in section 307(b) of the CAA.

On April 22, 1997, we received a petition from the ACC's Ketones Panel to remove MIBK from the HAP list. Because of incomplete toxicological information on MIBK, discussions between EPA and the petitioner after the submittal led to a mutual agreement to suspend review of the petition to allow time for a two-generation reproductive study. That study was completed in 2000 and was reviewed as part of EPA's “Toxicological Review of Methyl Isobutyl Ketone” which was completed in March 2003 (EPA-635/R-03-002). After the publication of that document, the petitioner submitted an addendum on October 17, 2003, requesting that we evaluate the petition for completeness and grant the petition.

After reviewing the original petition and the two addenda, we have determined that all of the necessary subject areas for a human health and environmental risk assessment have been addressed. Therefore, the petition is complete and ready for technical review. The ACC's last addendum of October 17, 2003, marked the start of the 18-month technical review and decision period. Today's notice initiates our comprehensive technical review of the petition and invites public comment on the substance of the petition as described above.

The original petition and addenda provided by the ACC contain the following information:

• Identification and location of facilities producing or using MIBK.

• Background data on MIBK, including chemical and physical properties data and production and use data.

• Toxicological data on human health and environmental effects of MIBK.

• Estimated emissions of MIBK derived from the 2001 Toxic Release Inventory (TRI). The TRI is an emissions inventory database developed under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986.

• Tiered air dispersion modeling that provides estimates of the ambient concentration of MIBK adjacent to those facilities that produce or use it. Tiered modeling involves the use of successive modeling techniques to move from conservative “worst case” estimates of the ambient concentrations of a substance emitted from a source toward more realistic site-specific estimates of the ambient concentrations.

• Characterization of the exposures and risks from MIBK to human health and the environment.

• Documentation of a literature search on MIBK conducted immediately prior to the filing of the petition. This includes an identification of the data bases searched, the search strategy, and printed results.

• Copies of relevant human, animal, in vitro, or other toxicity studies cited in the literature search.

• Environmental effects data characterizing the fate of MIBK emitted to the atmosphere. This includes atmospheric residence time, solubility, phase distribution, vapor pressure, octanol/water partition coefficients, particle size, adsorption coefficients, information on atmospheric transformations, potential degradation or transformation products, and bio-accumulation potential.

• Other relevant considerations, such as ACC's petition to delist MIBK under EPCRA section 313.

• List of all support documents in the petition.

The petition lists three companies (Eastman Chemical, Shell Chemical, and Union Carbide) that produced 220 million pounds domestically in 1995. The petition describes MIBK as being both a solvent and chemical intermediate. When used as a solvent, it is highly efficient for dissolving a wide variety of resins. Therefore, it is widely used in surface coatings, adhesives, inks, and traffic marking paints. The MIBK is also used as a solvent in cleaning fluids and dewaxing agents, and in the extraction of fats, oils, waxes, and resins. It is used in the formulation of high-solids coatings which are being used to reduce emissions of volatile organic compounds (VOC) from many types of coatings. The MIBK is reported to occur naturally in plants and animals, and has been identified as a natural component of several foods.

According to the petition, based on the chemical and physical properties of MIBK, inhalation is the only significant route of human exposure to MIBK emissions. Using the most recent TRI data and some site-specific data as input in a tiered air dispersion modeling approach, the petition develops estimates of the maximum annual and 24-hour concentrations anticipated to occur at the boundaries of facilities known to emit MIBK. The petition compares modeling output to available health data to conclude that, given the low concentrations anticipated to occur at facility boundaries, MIBK cannot reasonably be anticipated to cause either acute or chronic adverse health effects to people living near these facilities.

The petition discusses the results of fugacity modeling that was performed to evaluate the fate of MIBK in air, water, soil and sediment. The results of the modeling indicate that the concentrations of MIBK in water, soil, and sediment are well below levels expected to pose hazards to human health or the environment.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-148, adopted June 21, 2004, and released July 9, 2004. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail qualexint@aol.com. This document is not subject to the Congressional Review Act. (The Commission is, therefore, not required to submit a copy of this Report and Order to GAO, pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because this proposed rule is denied.)

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket Nos. 04-237, 04-238, adopted June 23, 2004 and released June 28, 2004. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160, or via e-mail http://www.BCPIWEB.com.

The Audio Division requests comments on a petition filed by Paul B. Christensen proposing the allotment of Channel 249A at Nantucket, Massachusetts, as the community's second FM commercial aural transmission service. Channel 249A can be allotted to Nantucket in compliance with the Commission's minimum distance separation requirements with a site restriction of .4 kilometers (.25 miles) north of Nantucket. The reference coordinates for Channel 249A at Nantucket are 41-17-12 North Latitude and 70-06-06 West Longitude.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contact.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making , MB Docket No. 04-239, adopted June 23, 2004, and released June 28, 2004. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or www.BCPIWEB.com .

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 04-240, adopted June 23, 2004, and released June 28, 2004. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or http://www.BCPIWEB.com .

Provisions of the Regulatory Flexibility Act of l980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows: