On February 6, 2024, the Merit Systems Protection Board (MSPB or Board) proposed an amendment to 5 CFR 1201.3, which sets forth a non-exclusive list of the types of appeals within the MSPB's jurisdiction. 89 FR 8083. In response to publication of the proposed rule, the MSPB received three comments from three commenters. The comments received by the MSPB are available for review by the public at https://www.mspb.gov/foia/e-foiareadingroom.htm .

The MSPB initially proposed amending 5 CFR 1201.3 to include a new type of appeal proposed by the Office of Personnel Management (OPM) at 5 CFR 302.603. 89 FR 8083. OPM's proposed rule provided that certain Federal employees moved from the competitive service into the excepted service, or moved between schedules in the excepted service, would have a right to appeal to the MSPB any purported loss of civil service protections stemming from that move. 88 FR 63862.

OPM's Final Rule for 5 CFR 302.603, published elsewhere in this issue of the Federal Register , adjusted the language of the proposed regulation providing the appeal right. Generally, OPM's final rule at section 302.603 permits an appeal for: (1) an agency's assertion that a Federal employee moved from the competitive service into the excepted service, or moved between schedules in the excepted service, would lose appeal rights, competitive status, or other previously accrued protections as a result of that move; and (2) an agency's failure to provide required notice to the employee regarding whether the move would affect the employee's appeal rights, competitive status, or other accrued protections. An appeal arising under the first part of this regulation would request that the MSPB correct the assertion from the agency regarding the individual's alleged loss of appeal rights, competitive status, or other accrued protections, stemming from the move and direct the agency to afford such rights, status, and protections to the employee in subsequent actions under chapters 43 or 75 of title 5, United States Code, except to the extent that any such order would be inconsistent with an applicable statute. An appeal arising under the second part of this regulation would request that the MSPB order the employee's agency to issue the required notice regarding the asserted effect of the move. The MSPB has thus adjusted the language of its proposed rule implementing OPM's rule to accord with OPM's revisions.

Additionally, the MSPB received three comments from three commenters in response to its proposed rulemaking. Two of the commenters did not provide any substantive comment on the MSPB's proposal, but indicated general approval of the proposal. The third commenter also expressed support for the MSPB's original proposal, but further suggested that the MSPB clarify its proposal to include all of the types of appeals provided by OPM in its proposed 5 CFR 302.603. OPM's proposed rule provided not only appeals when individuals were involuntarily moved, but also appeals when individuals believed that their facially voluntary moves were coerced or otherwise involuntary. The MSPB agrees with the commenter's suggestion and has reformulated its draft rule to more clearly reflect all of the types of appeals provided in OPM's final 5 CFR 302.603.

This final rule will become effective 30 days after publication in the Federal Register .

For the reasons set forth above, 5 CFR part 1201 is amended as follows:

EASA, which is the Technical Agent for the Member States of the European Union, has issued a series of ADs with the most recent being EASA AD 2023-0160, dated August 16, 2023 (EASA AD 2023-0160), to correct an unsafe condition for Leonardo S.p.A. Model AW169 helicopters.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Leonardo S.p.a. Model AW169 helicopters. The NPRM published in the Federal Register on December 21, 2023 (88 FR 88274). The NPRM was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The NPRM proposed to require accomplishing the actions specified in EASA AD 2023-0160, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and the EASA AD.” The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the EASA AD in the AD docket at regulations.gov under Docket No. FAA-2023-2244.

The FAA received no comments on the NPRM or on the determination of the costs.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters.

EASA AD 2023-0160 requires replacing components before exceeding their life limits and accomplishing maintenance tasks within thresholds and intervals specified in the applicable ALS as defined in EASA AD 2023-0160. Depending on the results of the maintenance tasks, EASA AD 2023-0160 requires accomplishing corrective action(s) or contacting Leonardo [Leonardo S.p.a.] for approved instructions and accomplishing those instructions. EASA AD 2023-0160 also requires revising the Aircraft Maintenance Programme (AMP) by incorporating the limitations, tasks, and associated thresholds and intervals described in the specified ALS as applicable to the helicopter model and configuration. Revising the AMP constitutes terminating action for the requirement to record accomplishment of the actions of replacing components before exceeding their life limits and accomplishing maintenance tasks within the thresholds and intervals specified in the applicable ALS as required by EASA AD 2023-0160 for demonstration of AD compliance on a continued basis.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES section.

The FAA also reviewed AW169 Air vehicle maintenance planning information, 69-A-AMPI-00-P, Chapter 04, ALS, Issue 21, dated July 7, 2023. This service information specifies airworthiness limitations, tasks, and associated thresholds and intervals for various parts, and specifies new or more restrictive airworthiness limitations for certain components installed on the tail rotor system.

EASA AD 2023-0160 requires replacing certain components before exceeding applicable life limits, accomplishing certain maintenance tasks within thresholds and intervals as specified in the ALS, as defined within, and depending on the results, accomplishing corrective action within the compliance time specified in that ALS. EASA AD 2023-0160 also requires revising the approved AMP to incorporate the limitations, tasks, and associated thresholds and intervals described in that ALS within 12 months after its effective date. Whereas, this AD requires revising existing documents and programs within 30 days to incorporate the limitations, tasks, and associated thresholds and intervals described in that ALS, and clarifies that if an incorporated limitation or threshold therein is reached before 30 days after the effective date of this final rule, you still have up to 30 days after the effective date of this final rule to accomplish the corresponding task.

The FAA estimates that this AD affects 10 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Revising the ALS of the existing helicopter maintenance manual or ICA for your helicopter and the existing approved maintenance or inspection program for your helicopter, as applicable, will take 2 work-hours for an estimated cost of $170 per helicopter and $1,700 for the U.S. fleet.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Comments Invited

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2024-0991; Project Identifier MCAI-2024-00051-A” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Isabel Saltzman, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2024-02, dated January 12, 2024 (also referred to as the MCAI), to correct an unsafe condition on Diamond Aircraft Industries Inc. Model DA 62 airplanes, serial numbers 62.C001 through 62.C044 and 62.008 through 62.203. The MCAI states that the DA 62 AMM initially specified standard torque values for the horizontal stabilizer attachment bolts but these attachment bolts were designed to require a higher torque value and the AMM was updated to include the correct torque value. During the time the DA 62 AMM specified the lower, incorrect torque value, there could have been occurrences where the removal of the horizontal stabilizer attachment bolts was required, and the lower torque value was used for the installation of the horizontal stabilizer attachment bolts.

The FAA is issuing this AD to address incorrect torque values for the horizontal stabilizer attachment bolts. The unsafe condition, if not addressed, could result in premature wearing of the horizontal stabilizer attachment bolts, loss of structural integrity of the horizontal stabilizer, subsequent separation of the horizontal stabilizer from the fuselage, and loss of control of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-0991.

The FAA reviewed Diamond Aircraft Industries Work Instruction WI-MSB-62-052, Revision 0, dated September 18, 2023, attached to Diamond Aircraft Industries Mandatory Service Bulletin MSB 62-052, Revision 0, dated September 18, 2023 (issued as one document), which specifies procedures for reviewing the aircraft technical records to determine if the horizontal stabilizer bolts were last torqued to 45 newton meters (Nm) and torquing the horizontal stabilizer attachment bolts to 45 Nm.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires reviewing the airplane maintenance records to determine the torque values for the horizontal stabilizer attachment bolts and torquing the horizontal stabilizer attachment bolts to 45 Nm if necessary.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because horizontal stabilizer bolts, if not torqued to the correct value, could result in premature wearing of the horizontal stabilizer attachment bolts, loss of structural integrity of the horizontal stabilizer, subsequent separation of the horizontal stabilizer from the fuselage, and loss of control of the airplane. Additionally, the corrective action must be accomplished before further flight. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 86 airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition action that would be required based on the results of the records review. The FAA has no way of determining the number of aircraft that might need this on-condition action:

EASA, which is the Technical Agent for the Member States of the European Union, has issued a series of ADs with the most recent being EASA AD 2023-0161, dated August 16, 2023 (EASA AD 2023-0161), to correct an unsafe condition on Leonardo S.p.A. Model AW189 helicopters.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Leonardo S.p.a. Model AW189 helicopters. The NPRM published in the Federal Register on December 21, 2023 (88 FR 88276). The NPRM was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The NPRM proposed to require accomplishing the actions specified in EASA AD 2023-0161, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and the EASA AD.” The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the EASA AD in the AD docket at regulations.gov under Docket No. FAA-2023-2245.

The FAA received no comments on the NPRM or on the determination of the costs.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters.

EASA AD 2023-0161 requires replacing components before exceeding their life limits and accomplishing maintenance tasks within thresholds and intervals specified in the applicable ALS as defined in EASA AD 2023-0161. Depending on the results of the maintenance tasks, EASA AD 2023-0161 requires accomplishing corrective action(s) or contacting Leonardo [Leonardo S.p.a.] for approved instructions and accomplishing those instructions. EASA AD 2023-0161 also requires revising the Aircraft Maintenance Programme (AMP) by incorporating the limitations, tasks, and associated thresholds and intervals described in the specified ALS as applicable to the helicopter model and configuration. Revising the AMP constitutes terminating action for the requirement to record accomplishment of the actions of replacing components before exceeding their life limits and accomplishing maintenance tasks within the thresholds and intervals specified in the applicable ALS as required by EASA AD 2023-0161 for demonstration of AD compliance on a continued basis.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA also reviewed Leonardo AW189 document 89-A-AMPI-00-P, Air Vehicle Maintenance Planning Information, Chapter 4, Airworthiness Limitations, Issue 25, dated July 5, 2023, for helicopters equipped with General Electric CT7-2E1 engines. This service information specifies procedures for airworthiness limitations, tasks, and associated thresholds and intervals for various parts; including a new or more restrictive airworthiness limitation for a certain component installed in the main rotor gearbox.

EASA AD 2023-0161 requires replacing certain components before exceeding applicable life limits, accomplishing certain maintenance tasks within thresholds and intervals as specified in the ALS, as defined within, and depending on the results, accomplishing corrective action within the compliance time specified in that ALS. EASA AD 2023-0161 also requires revising the approved AMP to incorporate the limitations, tasks, and associated thresholds and intervals described in that ALS within 12 months after its effective date. Whereas, this AD requires revising existing documents and programs within 30 days to incorporate the limitations, tasks, and associated thresholds and intervals described in that ALS, and clarifies that if an incorporated limitation or threshold therein is reached before 30 days after the effective date of this final rule, you still have up to 30 days after the effective date of this final rule to accomplish the corresponding task.

Additionally, EASA AD 2023-0161 requires using 89-E-AMPI-00-P Air Vehicle Maintenance Planning Information, Chapter 04, ALS Issue 09, dated July 5, 2023, for revising the ALS. This service information is applicable for helicopters equipped with SAFRAN ANETO-1K engines. This AD will not allow this service information because that engine has not been FAA type-certificated for Model AW189 helicopters.

The FAA estimates that this AD affects 4 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Revising the ALS of the existing helicopter maintenance manual or ICA for your helicopter and the existing approved maintenance or inspection program for your helicopter, as applicable, will take 2 work-hours for an estimated cost of $170 per helicopter and $680 for the U.S. fleet.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all MHI RJ Aviation ULC Model CL-600-2E25 (Regional Jet Series 1000) airplanes. The NPRM published in the Federal Register on January 11, 2024 (89 FR 1849). The NPRM was prompted by AD CF-2023-43, dated June 21, 2023, issued by Transport Canada, which is the aviation authority for Canada (Transport Canada AD CF-2023-43) (also referred to as the MCAI). The MCAI states that new or more restrictive airworthiness limitations have been developed.

In the NPRM, the FAA proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in Transport Canada AD CF-2023-43. The FAA is issuing this AD to prevent potential fatigue cracking and damage in principal structural elements. The unsafe condition, if not addressed, could result in reduced structural integrity of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-0026.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Transport Canada AD CF-2023-43, which specifies new or more restrictive airworthiness limitations for airplane structures and a safe life limit. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 5 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2024-0993; Project Identifier MCAI-2024-00178-E” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Barbara Caufield, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2024-0069-E, dated March 12, 2024 (EASA AD 2024-0069-E) (also referred to as the MCAI), to correct an unsafe condition for all RRD Model RB211-524H-36 and RB211-524H-T-36 engines. The MCAI states that multiple occurrences have been reported of engine surges during climb. A subsequent investigation determined that the HPC stage 1 and stage 2 rotor path liners had a level of liner material loss which had significantly eroded the surge margin. To address this unsafe condition, the manufacturer published service information that specifies procedures for performing BSIs of HPC stage 1 and stage 2 rotor path liners for material loss. This condition, if not addressed, could result in dual engine shutdown and reduced control of the airplane

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-0993.

The FAA reviewed EASA AD 2024-0069-E, which specifies procedures for performing BSIs of affected HPC stage 1 and stage 2 rotor path liners.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires accomplishing the actions specified in EASA AD 2024-0069-E described previously, except for any differences identified as exceptions in the regulatory text of this AD.

Where paragraph (1) of the MCAI specifies performing the initial BSI of the HPC stage 1 and stage 2 rotor path liners within 18 days after the effective date of the MCAI, this AD requires performing the initial BSI of the HPC stage 1 and stage 2 rotor path liners within 5 days after the effective date of this AD.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because material loss on the HPC stage 1 and 2 rotor path liners could cause engines to surge, which may result in dual engine shutdown and reduced control of the airplane. There have been reports of aircraft utilizing affected engines that have exceeded airworthiness requirements, therefore, the likelihood of the unsafe condition occurring is high and the inspection needs to be done on at least one engine installed on an affected airplane within 5 days. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 16 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

Corrective action that may be needed as a result of the BSI could vary significantly from aircraft to aircraft. The FAA has no data to determine the costs to accomplish the corrective action or the number of aircraft that may require corrective action or repair.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866, and

(2) Will not affect intrastate aviation in Alaska.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

The Commission is adopting amendments to 17 CFR 275.203A-2(e) (“rule 203A-2(e)” or “Internet Adviser Exemption”) under the Investment Advisers Act of 1940 (“Advisers Act” or “Act”) [15 U.S.C. 80b-1 et seq. ] and corresponding amendments to 17 CFR 279.1 (“Form ADV”) under the Advisers Act. 1

We are adopting amendments to rule 203A-2(e) under the Advisers Act. The Internet Adviser Exemption provides an exemption from the prohibition on registration with the Commission that may otherwise affect certain advisers seeking to register with us. The amendments are designed to modernize the Internet Adviser Exemption's conditions to account for the evolution in technology and the investment advisory industry since the adoption of the rule over 20 years ago. Specifically, the amendments will require an internet investment adviser to provide investment advice to all of its clients exclusively through an “operational” interactive website at all times during which it relies on the Internet Adviser Exemption. The amendments also will eliminate the de minimis exception in the current rule that permits internet investment advisers to have fewer than 15 non-internet clients in the preceding 12-month period. In addition, we are adopting amendments to Form ADV to conform certain instructions and definitions to the amended Internet Adviser Exemption and to require additional representations regarding an internet investment adviser's reliance on the rule.

In July 2023, the Commission proposed amendments to the Internet Adviser Exemption with certain corresponding amendments to Form ADV. 2 The Commission received eight comments on the proposed amendments. 3 Most commenters expressed broad support for the proposal while a few commenters suggested modifications. 4 One commenter disagreed with the proposal in its entirety. 5 After consideration of the comments received and as discussed in more detail below, we are adopting the amendments to the Internet Adviser Exemption, as proposed.

The National Securities Markets Improvement Act of 1996 (“NSMIA”) amended the Advisers Act to divide the responsibility for regulating investment advisers between the Commission and State securities authorities. 6 Congress allocated to State securities authorities the primary responsibility for regulating smaller advisory firms and allocated to the Commission the primary responsibility for regulating larger advisory firms. 7 Section 303 of NSMIA amended the Advisers Act to include section 203A  8 to effect this division of responsibility by generally prohibiting advisers from registering with the Commission unless they either have assets under management of not less than $25 million or advise a registered investment company, 9 and preempt State adviser statutes regarding registration, licensing, or qualification as to advisers registered with the Commission. 10 The “$25 million assets under management” test was designed by Congress to distinguish investment advisers with a national presence from those that are essentially local businesses. 11 Congress expressed that its goal in enacting the statute was more efficiently to allocate the Commission's limited resources by allowing the Commission to concentrate its regulatory responsibilities on larger advisers with national businesses, and to reduce the burden on investment advisers of the overlapping and duplicative regulation between Federal and State regulators. 12 In 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) amended certain provisions of the Advisers Act, including section 203A, to, among other things, reallocate primary responsibility for oversight of investment advisers by delegating generally to the States responsibility over certain “mid-sized” advisers— i.e., subject to certain exceptions, advisers with between $25 million and $100 million of assets under management. 13

Congress has recognized, however, that it is more efficient to regulate some advisers at the Federal level despite managing less than the minimum thresholds in assets under management and gave the Commission authority to enable advisers to register with the Commission if the prohibition would be “unfair, a burden on interstate commerce, or otherwise inconsistent with the purposes of [section 203A].”  14 In exercising this authority, the Commission in 2002 adopted the Internet Adviser Exemption, which relieves certain advisers that provide investment advisory services primarily through the Internet from the burdens of multiple State regulation and allows them to register with the Commission. 15

The Internet Adviser Exemption was designed to create a narrow exemption from the prohibition on registration for certain Internet investment advisers that otherwise are not eligible for registration with the Commission, because they do not meet the statutory thresholds for registration. 16 These advisers, therefore, “do not fall neatly into the model assumed by Congress when it added [s]ection 203A to the Act to divide regulatory authority over advisers.”  17 An adviser could rely on the Internet Adviser Exemption (as originally adopted) if, among other obligations, it provided investment advice to all of its clients exclusively through an interactive website, except it was permitted to provide investment advice to fewer than 15 clients through other means during the preceding 12 months. 18

The asset management industry has experienced substantial growth and change since the rule was adopted over 20 years ago. Assets under management have more than quadrupled since the adoption of the rule. 19 Similarly, since the adoption of the rule, advisers are increasingly using technology to interact with clients, including through email, websites, mobile applications, investor portals, text messages, chatbots, and other similar digital platforms. 20 The use of technology is now central to how many investment advisers provide their products and services to clients. For example, the growth of services available on digital platforms, such as those offered by online brokerage firms and robo-advisers, has multiplied the opportunities for investors to invest in and trade securities. This increased accessibility has been one of the many factors associated with the increase of retail investor participation in U.S. securities markets in recent years. 21 Concomitant with the growth in assets under management and the broader evolution and adoption of technology in the investment advisory industry, we have seen an increase in the number of advisers seeking to rely on the Internet Adviser Exemption. 22 We recognize that investment advisers are increasingly using a wide range of technologies in their businesses. The Internet Adviser Exemption, however, was intended as a narrow exemption for entities that exclusively provide investment advice through an interactive website. 23

While some advisers have used the exemption as intended, others have used the exemption to register with the Commission while failing to satisfy the conditions of the exemption. 24 The recent increase in the number of advisers seeking to rely on the Internet Adviser Exemption coincides with an increase in registration withdrawals and cancellations of Internet investment advisers, which has affected the cumulative growth in the number of advisers relying on the Internet Adviser Exemption. 25 For example, approximately 67% of the advisers withdrawing their registration under the rule have done so since 2017, while only approximately 33% of the withdrawing advisers did so from the rule's adoption in 2002 through 2016. 26

Our examination staff has observed numerous compliance deficiencies by advisers relying on the rule. 27 For example, the staff observed advisers relying on this exemption that did not have an interactive website. In addition, the staff observed advisers relying on this exemption that provided advisory personnel who could expand upon the investment advice provided by the adviser's interactive website or otherwise provide investment advice to clients, such as financial planning, outside of the adviser's interactive website. 28

As discussed above, the Commission intended the Internet Adviser Exemption to be a narrow exemption for certain investment advisers that did not fall neatly within the framework established by Congress to divide regulatory authority between State regulators and the Commission. 29 The amended Internet Adviser Exemption will better align current practices in the investment adviser industry with this narrow exemption and will adapt the rule to the broader evolution in technology and the marketplace that has occurred since the rule was adopted. In addition, the amendments will enhance investor protection through more efficient use of the Commission's limited oversight and examination resources by more appropriately allocating Commission resources to advisers with a national presence and allowing smaller advisers with a sufficiently local presence to be regulated by the States. The amendments also will minimize opportunities for advisers to rely on the exemption to register with the Commission without meeting the rule's conditions.

Largely as proposed, we are renaming the defined term “interactive website” as “operational interactive website,” and defining it as a website or mobile application through which the investment adviser provides digital investment advisory services on an ongoing basis to more than one client (except during temporary technological outages of a de minimis duration). 30 In a change from the proposal, to keep the rule evergreen as technology changes, we are also including in the definition any “similar digital platform” through which the investment adviser provides digital investment advisory services on an ongoing basis to more than one client. 31 The current rule defines “interactive website” to mean a website in which computer software-based models or applications provide investment advice to clients based on personal information each client supplies through the website. 32

Most commenters supported the proposed definition of “operational interactive website.”  33 Another commenter stated that the definition was “entirely appropriate” to protect against clients being misled by an investment adviser touting itself as Commission-registered. 34 Further, a commenter suggested that requiring investment advisers to maintain an operational website at all times ensures that “clients can access the advice and information they need whenever they want, which is essential in the digital era.”  35

Two commenters did not support this element of the proposal. One asserted that the requirement that investment advisers have operational interactive websites would make it harder for smaller entities, because they tend to have fewer clients. 36 We carefully considered the potential impact this change would have on smaller advisers. However, we are requiring an adviser to have a minimum of only two internet clients to qualify for the exemption, as proposed. 37

The other commenter stated that the Commission does not need to add the word “operational” to the term “interactive website” if the Commission eliminates the de minimis exception for non-internet clients and defines “digital investment advisory service” as proposed. 38 This commenter explained that the defined term “interactive website” should be sufficient, because a website cannot be interactive if it is not already operational. As discussed above, EXAMS staff has observed advisers relying on the exemption without having an operational interactive website. 39 Therefore, it is important to include the term “operational” in the definition of “operational interactive website,” because this addition reinforces the rule's requirement that an adviser must, at all times during which the adviser relies on the Internet Adviser Exemption ( i.e., at the time of the adviser's registration and at all times an adviser is registered in reliance on the amended Internet Adviser Exemption), have an operational interactive website through which it provides investment advice to more than one client.

Some commenters suggested modifications to the proposed definition of “operational interactive website.”  40 In this regard, one commenter stated that the Commission should modify it by requiring an investment adviser to provide digital investment advisory services to at least 15 clients. 41 This commenter expressed that, in its view, 15 or more clients, rather than the proposed “more than one,” is a better indicator of an adviser's national presence. Although there could be various ways of demonstrating national presence, in the context of the Internet Adviser Exemption, the existence of an operational interactive website that can be accessed by persons located in multiple States better reflects that the adviser has a national presence. Requiring a larger minimum number of clients to qualify for the exemption, such as 15 clients, would be inconsistent with the general policy objective that underpins the Internet Adviser Exemption. It would burden advisers that do not fall neatly within the State and Federal regulatory framework established by Congress with the obligation of registering in several States before the adviser would be eligible for Commission registration. 42

Another commenter urged the Commission to provide more clarity around the meaning of the phrase “ongoing basis” within the definition of “operational interactive website.”  43 An Internet investment adviser generally is providing investment advice on an ongoing basis through its website to a client if the advice is within the scope of the adviser-client relationship. 44 For example, an internet investment adviser and a client may come to an express agreement where the adviser-client relationship is of limited duration, such as for the provision of a one-time financial plan for a one-time fee. Following the termination of this adviser-client relationship by way of the expiration of the agreed duration of the agreement, the investment adviser generally would not be providing advice to the former client on an “ongoing basis” (absent some other arrangement or circumstance). Alternatively, an adviser providing comprehensive discretionary and continual advice to a retail client ( e.g., monitoring and periodically adjusting a portfolio of equity and fixed income investments with limited restrictions on allocation) generally would be providing advice to a client on an “ongoing basis.”

Further, the Proposing Release requested comment on whether to include “digital platform” in the definition of operational interactive website. 45 The one commenter addressing this request for comment specifically did not take a position, expressing, on the one hand, that more generic terminology could stand up better against rapidly advancing technology and remain evergreen and, on the other hand, that a “whole new medium of investment advice” would be significant enough to require refreshing rules. 46 After further consideration, the Commission is adding “similar digital platform” to the definition of operational interactive website to recognize that different types of technologies may develop in the future but to also reinforce that qualifying technologies must be ones through which an adviser can provide digital advisory services consistent with the rule.

We understand that unforeseen technological issues outside of the control of an adviser occur at times. We also understand that websites may be temporarily inoperable due to periodic maintenance to ensure that the website performs optimally. Accordingly, as proposed, we have incorporated into the definition of “operational interactive website” a hardship clause that allows an internet investment adviser to satisfy the rule despite temporary technological outages of the operational interactive website of a de minimis duration. 47 The amended rule otherwise specifies that the requirement to provide an operational interactive website will apply at all times during which the adviser relies on the Internet Adviser Exemption ( i.e., at the time of the adviser's registration and at all times an adviser is registered in reliance on the amended Internet Adviser Exemption). 48 An adviser intending to rely on the Internet Adviser Exemption may, however, rely on current rule 203A-2(c) (“120-day rule”) as an initial basis for registration with the Commission. The 120-day rule allows an adviser that is not registered with the Commission but has a reasonable expectation that it will be eligible for registration within 120 days to register in anticipation of its separate eligibility. 49 With advances in technology since the initial adoption of the rule more than 20 years ago, advisers seeking to rely on the Internet Adviser Exemption may use the 120-day rule to develop, test, and launch an operational interactive website and obtain initial clients by the time the 120-day temporary registration expires. Accordingly, like the current rule, the amended rule has no grace period of its own for meeting its conditions, including providing an operational interactive website. 50

The definition of “operational interactive website” is designed to specify the rule's application to advisers' use of technology, including their use of mobile applications or similar digital platforms, in connection with their eligibility to rely on the rule. We are adopting this aspect of the definition largely as proposed with the addition of “similar digital platform” to the definition. 51 Thus, the definition will expressly permit an internet investment adviser to use mobile applications or similar digital platforms to provide investment advice to clients. 52 It is appropriate to allow internet investment advisers using these platforms to interact with advisory clients to rely on the Internet Adviser Exemption, because clients increasingly access services, including investment advisory services, through these platforms, 53 which can provide interactive functionality similar to the functionality of websites. 54 By including mobile applications or similar digital platforms in the definition of “operational interactive website,” internet investment advisers will have broad flexibility to design the interactive website in a manner that best suits their needs and their clients' needs. In addition, the definition will allow for the evolution of advisers' use of technologies consistent with the Internet Adviser Exemption. We understand that these platforms use various methods of communication, including, but not limited to, push notifications, in-app messages, online client portal communications, and similar forms of electronic communication. The amended rule will permit an investment adviser relying on the Internet Adviser Exemption to provide digital investment advisory services through any form of mobile application technology or similar digital platform.

We are adopting the definition of “digital investment advisory service,” as proposed. The amendments will define “digital investment advisory service” to mean investment advice to clients that is generated by the operational interactive website's software-based models, algorithms, or applications based on personal information each client supplies through the operational interactive website. The definition is designed to require that, as under the current rule, an adviser must provide investment advice exclusively through an interactive website.

Most commenters generally supported the defined term “digital investment advisory service.”  55 One commenter asserted that it was appropriate to define the exemption narrowly to apply to firms whose investment advice is technologically rendered. 56 The same commenter requested that the Commission provide clarity, within the rule text itself, that personnel of the adviser cannot expand upon technologically generated advice but can answer other questions and help clients navigate the website or application.

Advisers are increasingly using algorithms to generate investment advice in order to provide clients with cost-effective and tailored advice and the definition encompasses this use. 57 The amendments will specify that, to qualify for the exemption, the investment advice to clients must be “generated by” the website's software-based models, algorithms, or applications. 58 Like the current rule, this definition is designed so that an adviser's personnel do not generate, modify, or otherwise provide client-specific investment advice through the operational interactive website or otherwise. 59 Human-directed client-specific investment advice, even if delivered through electronic means, would not be eligible activity under the Internet Adviser Exemption.

The amendments will not prohibit advisory personnel from all interactions with advisory clients, however. Consistent with the current rule, advisory personnel generally can continue to assist clients with technical issues or collect feedback in connection with the use of the website ( e.g., accessing the website), including by assisting clients with explanations of how the algorithm generating the investment advice was developed or operates. Advisory personnel generally should be able to perform those services telephonically, through email, live electronic chats, and similar forms of electronic communication. Continuing to provide this guidance, rather than changing the rule as suggested by a commenter, 60 is appropriate in light of the breadth of services offered to investors through advisers' interactive websites and our administration of the current rule. This approach also is consistent with the Commission's approach in the 2002 Proposing Release and the 2002 Adopting Release. 61

I. Background

The Privacy Act permits Federal agencies to exempt eligible records in a system of records from certain provisions of the Act, including the provisions providing individuals with a right to request access to and amendment of their own records and accountings of disclosures of such records. If an agency intends to exempt a particular system of records, it must first go through the rulemaking process to provide public notice and an opportunity to comment on the proposed exemption.

Elsewhere in this issue of the Federal Register , the Agency has announced a modified system of records, Next Generation Case Management System (NxGen) (NLRB-33), and rescindment of systems of records. Pursuant to subsections (k) of the Privacy Act, and for the reasons set forth below, the Board is making technical changes within 29 CFR 102.119 to remove references to exemptions for seven legacy systems that are being rescinded related to NxGen:

1. Attorney Disciplinary Case Files (Nonemployees) (NLRB-20);

2. Case Activity Tracking System (CATS) and Associated Regional Office Files (NLRB-25);

3. Regional Advice and Injunction Litigation System (RAILS) and Associated Headquarters Files (NLRB-28);

4. Appeals Case Tracking System (ACTS) and Associated Headquarters Files (NLRB-30);

5. Judicial Case Management Systems-Pending Case List (JCMS-PCL) and Associated Headquarters Files (NLRB-21);

6. Solicitor's System (SOL) and Associated Headquarters Files (NLRB-23); and

7. Special Litigation Case Tracking System (SPLIT) and Associated Headquarters Files (NLRB-27).

Additionally, the Board is making technical changes within 29 CFR 102.119 to remove references to one system that is no longer operational and which the Board will rescind as a Privacy Act system of record in a forthcoming notice: Freedom of Information Act Tracking System (FTS) and Associated Agency Files (NLRB-32).

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the Agency has determined that this rule would not impose new recordkeeping, application, reporting, or other types of information collection requirements on the public.

This rule is being published as a direct final rule as the Agency does not expect to receive any significant adverse comments. If such comments are received, this direct final rule will be withdrawn and a proposed rule for comments will be published.

For purposes of this rule, a significant adverse comment is one that explains (1) why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a significant adverse comment necessitates withdrawal of this direct final rule, the Agency will consider whether the comment raises an issue serious enough to warrant a substantive response had it been submitted in a standard notice-and-comment process. A comment recommending an addition to the rule will not be considered significant and adverse unless the comment explains how this direct final rule would be ineffective without the addition.

An agency typically uses direct final rulemaking when it anticipates the rule will be non-controversial. The Agency has determined that this rule is suitable for direct final rulemaking. The rule makes technical changes to 29 CFR 102.119 to remove references to exemptions for seven legacy systems replaced by NxGen (plus a system that will be rescinded later, NLRB-32). Related to NxGen, a notice of a modified system of records and rescindment of systems of records is also published in this issue of the Federal Register . Accordingly, pursuant to 5 U.S.C. 553(b), the Agency has for good cause determined that the notice and comment requirements are unnecessary.

For the reasons stated in the preamble, the NLRB amends 29 CFR part 102 as follows:

In addition to the explanations in this preamble, OSMRE directs the reader to the preamble for the proposed rule, 88 FR 24944 (April 25, 2023), because the Department is adopting the regulatory provisions as proposed with one exception.

Under SMCRA, each State that wishes to regulate surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders can submit a proposed State regulatory program to the Secretary of the Interior. 30 U.S.C. 1253(a). The Secretary, acting through OSMRE, reviews and approves or disapproves the proposed program. 30 U.S.C. 1211(c)(1), 1253(b). When the Secretary approves a State program, the State assumes exclusive jurisdiction or “primacy,” except as provided in sections 521 and 523 and title IV of SMCRA. 30 U.S.C. 1253(a), 1271, 1273, and 1231-1244. Under the exception at 30 U.S.C. 1271(a)(1), in a primacy State that has an approved State regulatory program, OSMRE retains oversight of the State program and some Federal enforcement authority. In this regard, SMCRA sometimes refers to a State regulatory authority as having “primary” responsibility. See, e.g., 30 U.S.C. 1201(f) and 1291(26) (defining “State regulatory authority” to mean “the department or agency in each State which has primary responsibility at the State level for administering [SMCRA]”).

As explained in the preamble to the proposed rule, two provisions of SMCRA primarily govern OSMRE's oversight and enforcement of State regulatory programs: sections 521(a) and (b), 30 U.S.C. 1271(a) and (b). Section 521(a)(1) requires OSMRE to notify a State regulatory authority (SRA) when OSMRE has “reason to believe” that any person is in violation of any requirement of SMCRA, the approved regulatory program, an approved permit, or a required permit condition. That OSMRE notification of a possible violation is known as a ten-day notice (TDN) because the SRA must respond to OSMRE within ten days by either taking “appropriate action” to cause the possible violation to be corrected or showing “good cause” for not taking action. In general, if the SRA fails to respond within ten days or the response is arbitrary, capricious, or an abuse of discretion, OSMRE must immediately order a Federal inspection of the surface coal mining operation where the alleged violation is occurring and take appropriate enforcement action.

Section 521(b) of SMCRA describes the Secretary's oversight and enforcement obligations when an SRA fails to effectively implement any part of its approved State program. The relevant existing regulations implementing section 521(b) of SMCRA are found at 30 CFR part 733 and are administered by OSMRE. The 2020 TDN Rule revised provisions in 30 CFR parts 733 and 842 to address State regulatory program issues before they rose to the level that would require OSMRE to take over administration of all or part of an approved State program under section 521(b). See 85 FR 75150 (Nov. 24, 2020). This final rule retains the basic structure of the 2020 TDN Rule but amends 30 CFR 733.5 and 733.12 to comply more fully with SMCRA's statutory requirements.

In the 2020 TDN Rule, OSMRE modified the regulations at 30 CFR 842.11(b)(1)(i) so that when OSMRE received a citizen complaint, OSMRE could consider “any information readily available [ ], from any source, including any information a citizen complainant or the relevant State regulatory authority submits” when determining whether OSMRE had reason to believe a violation existed. Existing §§ 842.11(b)(2) (TDN process) and 842.12(a) (requests for Federal inspections) contain similar “information readily available” and “readily available information” language. Providing for consideration of information from the SRA was an attempt to allow OSMRE to consider the latest, most accurate information when determining if it had reason to believe a violation existed.

Since publishing the 2020 TDN Rule, OSMRE has observed instances in which requesting and considering information from an SRA resulted in delay because the process extended the time periods for OSMRE to receive the information from the SRA. OSMRE generally interpreted the 2020 TDN Rule to require the consideration of all readily available information, including information that could be obtained from an SRA, when determining whether OSMRE has reason to believe a violation exists. In some instances, it took up to 30 days for the SRA to send OSMRE information that OSMRE could consider in determining if it had reason to believe a violation existed. This extended period is not consistent with the text or spirit of the statutory language. SMCRA's “reason to believe” standard does not require that OSMRE determine whether a violation actually exists; rather it only requires that OSMRE determine that a possible violation could exist.

To that end, this final rule limits the sources of information that OSMRE will need to consider in determining whether it has reason to believe a possible violation exists. In this final rule, after careful review of the statutory language, OSMRE's experience implementing the 2020 TDN Rule, and the public comments received on the proposed rule, OSMRE has removed the direction to consider “readily available information” and has, instead, in the final rule, as in the proposed rule, limited the scope of information it will consider before determining whether it has reason to believe “information received from a citizen complainant, information available in OSMRE files at the time that OSMRE is notified of the possible violation (other than information resulting from a previous Federal inspection), and publicly available electronic information.” § 842.11(b)(1)(i). OSMRE also made similar changes to final §§ 842.11(b)(2) and 842.12(a). With these sources of information, OSMRE believes it meets the text, intent, and spirit of SMCRA's “reason to believe” standard while also allowing OSMRE to consider enough information in a timely manner to firmly establish whether OSMRE has reason to believe a violation exists. Notably, this is not simply a reversion to the pre-2020 TDN regulations; this final rule also provides for OSMRE's consideration of “publicly available electronic information,” which often fills in any gaps in a citizen complaint, but with information that can be obtained in a more timely manner than waiting for a response from an SRA. Importantly, SMCRA's legislative history indicates that Congress “anticipated that `reasonable belief' could be established by a snapshot of an operation in violation or other simple and effective documentation of a violation.” H. Rept. No. 95-218, at 129 (April 22, 1977). This illustrates that in § 521(a)(1) of SMCRA, Congress intended that OSMRE could form “reason to believe” well short of proving an actual violation before issuing a TDN to an SRA. Thus, the simpler test for the “reason to believe” standard in this final rule is fully consistent with SMCRA and supported by its legislative history. In its response to a TDN, an SRA can include information that attempts to definitively disprove the existence of a violation; this approach is consistent with SMCRA for the stage at which OSMRE is determining whether a State has taken appropriate action or demonstrated good cause for not doing so in response to a TDN.

This final rule revises the 2020 TDN Rule with respect to what is considered a “violation” for TDN purposes. As in the proposed rule, the final rule treats all violations the same, regardless of their genesis ( i.e., whether they result from an operator's or permittee's failure to conduct surface coal mining operations consistently with the approved State program, or whether they result from an SRA's issuance of a permit that allows mining that would be inconsistent with the approved State program). As such, under 30 CFR 842.11, OSMRE will issue a TDN for any possible violation after forming reason to believe a violation exists.

OSMRE considered language in existing 30 CFR 733.12(d) that allowed OSMRE to issue a TDN for a previously identified State regulatory program issue that results in or may imminently result in a violation of the approved State program. In this final rule, however, as in the proposed rule, OSMRE modifies § 733.12(d) such that OSMRE will not wait for evidence of an imminent or actual on the-ground violation before issuing a TDN. It makes little sense to wait for mining to occur under a defective permit or a violation to occur on-the-ground before issuing a TDN for an inconsistency with the approved permit, approved State program, or SMCRA. It will no longer be the case that a possible violation could bypass 30 CFR part 842 and proceed initially as a State regulatory program issue under 30 CFR part 733. Instead, under this final rule, all possible violations, excluding imminent harm situations, will initially be considered under part 842.

In the preamble to the proposed rule, OSMRE used the example of issuing a TDN for failure to submit a required certification or monitoring report. This type of violation is not “on-the-ground,” but OSMRE may nonetheless issue a TDN in such instances. As first described in the preamble to the proposed rule and now reflected in the final rule, OSMRE will issue TDNs for all violations, including those committed by a permittee or those that result from an SRA issuing a defective permit ( i.e., a permit that is not in compliance with the approved State program or that would allow a permittee to mine in a manner that is not authorized by the State program). As stated in the preamble to the proposed rule, the term “permit defect” is not in the statute or regulations, and it has never been officially defined. OSMRE has used the phrase in internal guidance documents through the years and considers a permit defect to be a deficiency in a permit-related action taken by an SRA, such as when an SRA has issued a permit with a provision that is contrary to the approved State program or that, as explained above, would allow mining that is not authorized by the State program. After careful review and consideration of the public comments received on the proposed rule, OSMRE concludes that this change to apply the TDN process to all violations, including permit defects, more closely adheres to SMCRA's language in 30 U.S.C. 1271(a)(1) by treating all violations the same and preventing the perception that there are two classes of violations: one that is subject to the TDN process and one that is not. Instead, all possible violations, except those that create an imminent harm, will start under 30 CFR part 842 whenever OSMRE has reason to believe that a violation exists. Under this final rule, upon forming reason to believe that a violation exists, OSMRE will generally issue a TDN for all possible violations, including permit defects.

The issue of who can be in violation of SMCRA or a State program for TDN purposes is related to the issue of permit defects. As OSMRE noted in the preamble to the proposed rule (88 FR at 24949): “In the preamble to the 2020 TDN Rule, [OSMRE] explained that, under 30 U.S.C. 1271(a)(1), `any person' who can be in violation of SMCRA or a State regulatory program `does not include a State regulatory authority, unless it is acting as a permit holder. 85 FR 75176; see also id. at 75179.' ” After OSMRE's review of SMCRA, Congressional intent, and implementation experience through the years on this issue, OSMRE concludes that OSMRE must issue a TDN when it has reason to believe that any person, including an SRA, violates the approved State program, approved permit, or SMCRA. OSMRE will accept a State's response to the TDN unless OSMRE concludes that the action or response is arbitrary, capricious, or an abuse of discretion. 30 CFR 842.11(b)(1)(ii)(B)( 2 ).

As in the proposed rule, the final rule adopts, for the first time, regulatory definitions of “ten-day notice” and “citizen complaint.” OSMRE decided to define “ten-day notice” because these notices are fundamental to the overall ten-day notice process that is addressed in this final rule. OSMRE has frequently used the term “ten-day notice” in its implementing regulations and directives but has never defined the term until now. The concept derives from SMCRA section 521(a)(1), which provides that, after OSMRE notifies an SRA of a possible violation, the State must take “appropriate action” or show “good cause” for not doing so “within ten days.” This final rule creates a new section, 30 CFR 842.5, which defines “ten-day notice” as “a communication mechanism that OSMRE uses, in non-imminent harm situations, to notify a State regulatory authority under §§ 842.11(b)(l)(ii)(B)( 1 ) and 843.12(a)(2) when an OSMRE authorized representative has reason to believe that any permittee and/or operator is in violation . . . .” Importantly, as the definition notes, a ten-day notice is a “communication mechanism” between OSMRE and an SRA about a possible violation. Issuance of a TDN, therefore, provides the State with the first opportunity to review and address the possible violation, as necessary, under its approved State program.

SMCRA section 521(a)(1) provides citizens with the right to participate in the SMCRA enforcement process. This right often takes the form of a citizen filing a complaint to OSMRE or the SRA concerning a possible violation. These communications are often questions, formal and informal complaints, or general inquiries about particular surface coal mining and reclamation operations. At times, it has been difficult to ascertain the exact nature of these communications. Consistent with the proposed rule, the final rule defines “citizen complaint” at 30 CFR 842.5 to provide clarity and indicate that the purpose of a citizen complaint, in the TDN context, is for citizens to inform OSMRE of a possible violation. The definition of “citizen complaint” in this final rule is “any information received from any person notifying the Office of Surface Mining Reclamation and Enforcement (OSMRE) of a possible violation of the Act, this chapter, the applicable State regulatory program, or any condition of a permit or an exploration approval.” The definition also provides that the information “must be provided in writing (or orally, followed up in writing).” Defining the phrase “citizen complaint” provides clarity for the meaning of the phrase and related processes.

In this final rule, OSMRE adopts the time frames that it proposed to ensure quicker resolution of outstanding issues. SMCRA section 521(a)(1) requires the SRA to respond within ten days to an OSMRE notification of a possible violation, indicating either that it has taken appropriate action to cause a possible violation to be corrected or that it has good cause for not acting. 30 U.S.C. 1271(a)(1); 30 CFR 842.11(b)(1)(ii)(B). Responding within ten days does not require the possible violation to be fully resolved but does require the SRA to indicate its intended actions to resolve a possible violation. As described in the proposed rule and below, the final rule incorporates several additional time frames in both the TDN process and development of a 30 CFR part 733 corrective action plan to reduce the time between the identification of a violation or State regulatory program issue and final resolution of the identified issue.

The 2020 TDN Rule contained no definitive time frames to address a State regulatory program issue, except that, if OSMRE believed the issue would take longer than 180 days to resolve, an action plan would be developed. 30 CFR 733.12(b). There were no interim action items or timelines, no maximum amount of time for an action plan to be completed, and no defined time frames for development of an action plan. Existing § 733.12(b) provided only that OSMRE “may employ any number of compliance strategies to ensure that the State regulatory authority corrects a State regulatory program issue in a timely and effective manner.” Id. Under this framework, a State regulatory program issue could potentially exist for a long period of time between identification of the issue and final resolution.

This final rule amends existing 30 CFR 842.11 and 733.12 to address the possibility of delays in resolving State regulatory program issues. To accomplish this objective, under amended 30 CFR 842.11(b)(1)(ii)(B)( 3 ), corrective actions developed under 30 CFR part 733 can no longer constitute appropriate action in response to a TDN. However, under this final rule, addressing a possible violation, along with substantially similar possible violations, under a part 733 action plan can constitute “good cause” for not acting.

This final rule also removes the 180-day language from 30 CFR 733.12(b) that would trigger development of an action plan. In the final rule, for each State regulatory program issue, § 733.12(b) indicates that OSMRE, “in consultation with the State regulatory authority, will develop and approve an action plan within 60 days of identification of a State regulatory program issue.” The fact that development of an action plan is intended to be a cooperative process between OSMRE and the SRA is also inherent in final § 733.12(b)(4). However, as that section indicates, “[i]f the State regulatory authority does not cooperate with OSMRE in developing the action plan, OSMRE will develop the action plan . . . and require the State regulatory authority to comply with [it].”

The 2020 TDN Rule, at existing § 733.12(b), did not require interim measures between identification of the State regulatory program issue and implementation of a corrective action plan. The existing regulations simply implied that measures would be developed, noting that OSMRE “may employ any number of compliance strategies to ensure that the State regulatory authority corrects a State regulatory program issue in a timely and effective manner.” Id. OSMRE concluded that this language could allow a violation to exist for extended periods of time before or during the time in which an action plan was developed and the issue resolved. In final § 733.12(b), OSMRE adds a provision, which it included in the proposed rule, to allow interim remedial measures to be developed. The final provision provides: “Within 10 business days of OSMRE's determination that a State regulatory program issue exists, OSMRE and the State regulatory authority may identify interim remedial measures that may abate the existing condition or issue.”

Section 733.12(b)(1) of the final rule allocates 365 days (one calendar year) for the SRA to complete all identified actions in an action plan. The one year starts on the date on which OSMRE sends the action plan to the SRA. As stated in the preamble to the proposed rule, OSMRE recognizes that final resolution of an issue could exceed one year. 88 FR at 24950. This is particularly true for actions involving multiple parties and/or agencies, State legislative actions, or any requirements imposed by court decisions. OSMRE reiterates that care must be exercised in development of the action plan to ensure that the identified corrective actions can be accomplished within one calendar year. The associated completion criteria must have actions and milestones that are achievable within one calendar year. The goal is to keep violations from going unabated, minimize on-the-ground impacts, and prevent off-site impacts. For example, if a State regulatory program issue requires a State program amendment, it is often not possible for a program amendment to be approved within one calendar year. A more reasonable action plan objective may be to submit to OSMRE a program amendment within one year.

The existing regulations at 30 CFR 842.11(b)(1)(ii)(B)( 4 )( ii ) indicated that “good cause” for an SRA not taking “appropriate action” in response to a TDN includes the State's initiation of “an investigation into a possible violation” and its resulting determination that it “requires a reasonable, specified additional amount of time to determine whether a violation exists.” This language had the potential to allow violations to remain unabated for an open-ended amount of time. As in the proposed rule, the final rule modifies this provision by specifying the time within which the SRA must complete its investigation. The final rule provides that “[t]he State regulatory authority may request up to 30 additional days to complete its investigation of the issue” and that, “in complex situations, the State regulatory authority may request up to an additional 60 days to complete the investigation.” The final rule caps the maximum amount of time at 90 additional days from when the SRA has satisfied the criteria for good cause for not taking action. Under OSMRE's normal practice, when an SRA requests additional time under this provision, the length of any OSMRE approved additional time will be measured from when OSMRE notifies the SRA that OSMRE has approved an extension. The final rule also requires a reasoned justification for an extended time frame to identify whether a violation exists as indicated in a TDN. As stated in the final rule provision, “[i]n all circumstances, an extension request must be supported by an explanation of the need for, and the measures being undertaken that justify, an extension, along with any relevant documentation.” OSMRE retains discretion to approve the requested time extension or establish the length of time, up to 90 additional days, that the SRA has to complete its investigation. These changes are intended to facilitate expedited resolutions of identified issues.

The 2020 TDN Rule, at 30 CFR 842.12(a) of the existing regulations, required citizens, when requesting a Federal inspection, to provide a statement, including, among other things, the fact that the person has notified the SRA of the existence of the possible violation. OSMRE carefully reviewed the statutory language and Congressional record preceding SMCRA's enactment and determined that no requirement exists for citizens to contact the SRA before contacting OSMRE about a possible violation. This concept first appeared in the preamble to the Permanent Regulatory Program regulations (44 FR 15299 (August 27, 1979)) and was discussed in the comments section of that preamble. There OSMRE concluded that it “has no authority under [SMCRA] to require a citizen to ask for a State inspection before asking for a Federal inspection.” Id. A few years later, in the preamble to a final rule entitled, “Permanent Regulatory Program Modifications; Inspections and Enforcement; Civil Penalty Assessments” (47 FR 35620 (Aug. 16, 1982)), OSMRE took the position that citizens must “notify the State regulatory authority in writing prior to, or simultaneously with, his or her request to OSM[RE]” ( id. at 35628), even though OSMRE had previously acknowledged that this is not a statutory requirement (44 FR 15299). Even under that rule, however, “the person [was] not required to wait for any action to be taken by the State regulatory authority before requesting a Federal inspection.” 47 FR at 35628. The State notification requirement was incorporated into section 842.12(a) of the 1982 rule as a measure to allow the SRA the first chance to address an issue identified by a citizen. However, OSMRE is aware of instances where citizens were hesitant to contact the SRA. Based on the foregoing, in this final rule, as in the proposed rule, OSMRE removed the language in existing section 842.12(a) requiring a citizen to first contact an SRA before they contact OSMRE to report the same possible violation.

As in the proposed rule, OSMRE is removing the existing requirement in section 842.12(a) that a citizen must state the basis for their allegation of a possible violation. After careful consideration of the statute, OSMRE's implementation experience, the regulatory language, and the public comments on the proposed rule, this final rule removes the requirement that a citizen must state the “basis for the person's assertion that the State regulatory authority has not taken action with respect to the possible violation.” Citizens are not necessarily well-versed on the text of SMCRA or its implementing regulations; therefore, they should not need to state their allegation in statutory or regulatory language. Conversely, OSMRE and the SRAs are experts in interpreting and implementing SMCRA and are, therefore, best suited to determine if a violation is or is not occurring under the applicable statutory and regulatory provisions. As OSMRE stated in the preamble to the proposed rule, OSMRE continues to believe that if a citizen first contacts the SRA, most possible violations will be resolved without the need for OSMRE to issue a TDN. Therefore, although a citizen is not required to contact the SRA about a possible violation before contacting OSMRE, OSMRE continues to strongly encourage citizens to do so because the SRA should be more acquainted with conditions on the ground for permits that it has issued and is typically in the best position to quickly determine and, if necessary, act on the merits of a citizen complaint.

To better align §§ 842.11(b)(1)(i) and 842.12(a), which both allow citizens to provide information to OSMRE concerning possible violations, the final rule makes both sections consistent with respect to a Federal inspection resulting from information received from a citizen complainant. This revision will reduce a real or perceived barrier to our public participation procedures because, even if a citizen complaint does not specifically request a Federal inspection, the TDN process could ultimately result in a Federal inspection if an SRA does not respond to the TDN or OSMRE determines that the SRA's response is arbitrary, capricious, or an abuse of discretion. As in the proposed rule, the final rule includes language in both §§ 842.11(b)(2) and 842.12(a) stating that all citizen complaints will be considered as requests for a Federal inspection. As stated in the proposed rule, the final rule provides that, if a Federal inspection occurs because of any information received from a citizen complainant, the citizen will be afforded the opportunity to accompany the Federal inspector on the inspection.

As in the proposed rule, this final rule modifies the existing regulations by removing 30 CFR part 733 corrective actions associated with a State regulatory program issue as a possible “appropriate action” in response to a TDN. 30 CFR 842.11(b)(1)(ii)(B)( 3 ). This rule excludes identification of a State regulatory program issue as a possible appropriate action in response to a TDN because, as stated in the preamble to the proposed rule, action plans do not themselves remedy violations. After careful review, while OSMRE will no longer consider an action plan to address a State regulatory program issue to be “appropriate action” in response to a TDN, OSMRE concluded that identifying and addressing a 30 CFR part 733 State regulatory program issue can, in certain circumstances, constitute good cause for not taking action within ten days in response to a TDN under 30 CFR 842.11(b)(1)(ii)(B)( 4 ). Addressing a part 733 State regulatory program issue and associated action plan demonstrates that the SRA will take actions to abate a violation, even though an action plan likely will not be developed and completed within the ten days allotted for responding to a TDN. The SRA must adhere to the timelines provided for in final 30 CFR 733.12(b) related to action plans.

This final rule also amends § 842.11(b)(1)(ii)(B)( 1 ) to reduce the burden on SRAs and OSMRE. This is accomplished by allowing OSMRE to issue a single TDN for substantively similar possible violations. The final rule reads: “Where appropriate, OSMRE may issue a single ten-day notice for substantively similar possible violations found on two or more permits, including two or more substantively similar possible violations identified in one or more citizen complaints.” As discussed in more detail in section II of this preamble, OSMRE is removing the words “involving a single permittee” after “two or more permits,” which represents a change from the proposed rule language.

Additionally, as mentioned above, this final rule amends § 842.11(b)(1)(ii)(B)( 4 )( iii ) so that good cause in response to a TDN includes situations in which “OSMRE has identified substantively similar possible violations on separate permits and considers the possible violations as a single State regulatory program issue . . . .” As stated in the preamble to the proposed rule, the phrase “substantively similar possible violations” is meant to indicate issues or possible violations that have a common basis or theme; that are similar, or even identical, in nature; and that are subject to the same statutory or regulatory provisions. 88 FR at 24951. Issuing separate and distinct TDNs for substantively similar possible violations would be redundant and not an efficient use of OSMRE or State resources when the underlying issue can be more efficiently addressed through a single TDN or State regulatory program issue and associated corrective action plan for a group of similar possible violations. This is discussed further in section II of this preamble. OSMRE believes that the presence of similar or identical violations on several approved permits may indicate a systemic issue with implementation of an SRA's program and that combining substantively similar violations into a single State regulatory program issue and addressing the similar violations through implementation of an action plan is an efficient means of addressing the underlying issue. Treating these possible violations as an overarching State regulatory program issue will allow an SRA and OSMRE to focus on the larger context and make sure that the underlying issue is efficiently resolved and properly addressed going forward.

As mentioned above, final section 842.11(b)(1)(ii)(B)( 4 )( iii ) also provides that “good cause” includes when “OSMRE has identified substantively similar possible violations on separate permits and considers the possible violations as a single State regulatory program issue addressed through § 733.12.” It is appropriate to consider a State regulatory program issue and associated action plan as “good cause” because proper completion of the action plan will resolve the underlying issue. After reconsidering the 2020 TDN Rule, the existing regulations, and comments on the proposed rule, OSMRE determined that an action plan is not “appropriate action” because creation of the action plan itself does not resolve or correct the underlying issue. Instead, as its name suggests, it is only a “plan” to correct the underlying issue.

The changes in this final rule enhance efficiency and effectiveness of the TDN process, while honoring State primacy, and they more closely adhere to the language, spirit, and intent of SMCRA's statutory requirements. OSMRE will continue to honor State primacy and perform its statutorily mandated oversight to ensure adequate SMCRA implementation in the primacy States. In addition, OSMRE will continue to work with citizens to ensure that their voices are heard and that their legitimate concerns are properly addressed as SMCRA intended. In summary, this final rule eases burdens on citizens filing complaints, makes the TDN process more effective and efficient, and provides more structure to the identification of State regulatory program issues and associated action plan processes. As such, the final rule reduces burdens on both OSMRE and SRAs and increases the overall effectiveness of the SMCRA programs.

As mentioned in section I.B.x of this preamble, in this final rule, OSMRE made only one change from the proposed regulatory provisions. OSMRE removed the phrase “involving a single permittee” after “two or more permits” from the proposed revisions at 30 CFR 842.11(b)(1)(ii)(B)( 1 ). All other provisions that OSMRE included in the proposed rule are reflected in this final rule. The final rule language enables OSMRE to incorporate substantively similar violations into a single TDN without writing a separate TDN for each permittee. This will allow OSMRE to group the possible violations together, which will alert the SRA that the identified permits have possible violations involving a substantively similar issue and relieve OSMRE of having to write numerous TDNs for each identified permittee. Without this approach, an SRA could receive multiple TDNs for substantively similar issues, which would take undue time and effort for the SRA to evaluate before identifying the commonality.

OSMRE published the proposed rule on April 25, 2023 (88 FR 24944), soliciting public comments for 60 days. During the comment period, OSMRE received over 5,000 sets of comments from members of the public, State governments, trade associations, environmental advocacy groups, and private companies. Each public comment was considered in the development of the final rule. Many comments were supportive of the proposed rule, with some expressing support for reverting the regulations to the pre-2020 rule, which provided for looking only at the allegations of the citizen complaint before issuing a TDN. OSMRE also received comments that were critical of the proposed rule. Some of these comments expressed concern about revising these regulatory provisions so soon after the 2020 TDN Rule became effective and alleged that the proposed rule would infringe on State primacy.

Comments received that are similar in nature have been categorized by subject and, in some instances, have been combined with related comments.

Comment: Some commenters asserted that the proposed rule conflicts with various provisions of SMCRA, especially as it pertains to the roles and responsibilities of SRAs and OSMRE in primacy states, such as 30 U.S.C. 1201(f), 1253, and 1271. These comments suggested that the proposed rule should be withdrawn.

Response: As discussed more fully in the preamble of the proposed rule at 88 FR at 24947-24948 and throughout this preamble, this rule is fully consistent with the text, legislative history, and purposes of SMCRA. OSMRE reviewed SMCRA and its legislative history and found no discrepancy between the statute and the revisions to the regulations that OSMRE is finalizing in this rule. As the commenters stated, over the years, several court opinions and the Department have discussed SMCRA's cooperative federalism structure. In this rule, OSMRE is committed to ensuring that SRA's maintain their “exclusive jurisdiction over the regulation of surface coal mining and reclamation operations, except as provided in [30 U.S.C. 1271 and 1273]. ” 30 U.S.C. 1253(a) (emphasis added). The TDN process, which is the focus of this rule, is set forth in 30 U.S.C. 1271(a) and is part of OSMRE's oversight and enforcement role. Because SMCRA specifically exempts the TDN process from a State's exclusive jurisdiction, this rule is not inconsistent with SMCRA or any binding legal precedent on this topic.

Comment: One commenter asserted that the proposed rule fails to acknowledge the 1988 TDN rule and the decades of regulatory policy established by that rule, such as the limited Federal role in primacy States and the handling of disagreements between OSMRE and SRAs.

Response: One of the policies established by the 1988 TDN Rule (53 FR 26728) was a uniform standard by which OSMRE would evaluate State responses to a TDN. The 1988 preamble states that “OSMRE will accept a state regulatory authority's response to such a notice, called a ten-day notice, as constituting appropriate action to cause a possible violation to be corrected or showing good cause for failure to act unless OSMRE makes a written determination that the state's response was arbitrary, capricious, or an abuse of discretion under the state program.” 53 FR at 26728. The 1988 rule clearly delineated the roles of the State and OSMRE with respect to SMCRA implementation once a State acquires primacy. In the same preamble, OSMRE also stated: “In primacy states, a mine operator's compliance is measured against the approved state program, rather than directly against the Act. As the court explained in In re: Permanent Surface Mining Regulation Litigation ( In re: PSMRL ), `it is with an approved state law and with state regulations consistent with the Secretary's that surface mine operators must comply.' 653 F.2d at 519.” With respect to OSMRE's role once a State has an approved State program, OSMRE has stated that “ `the state regulatory agency plays the major role, with its greater manpower and familiarity with local conditions. It exercises front-line supervision, and the Secretary will not intervene unless its discretion is abused.' ” 53 FR at 26729 (quoting In re: PSMRL, 653 F.2d at 523).

This final rule is consistent with the legal authorities that OSMRE cited in support of the 1988 rule. Nothing in this final rule changes OSMRE's long-standing position not to intervene in a State's SMCRA implementation unless a State is not properly implementing its SMCRA program as approved. Likewise, OSMRE will continue not to intervene in a State's enforcement actions unless the State acts inconsistently with an approved State program. Nothing in this final rule is inconsistent with these long-standing principles.

Comment: Some commenters stated that the rule lacks any concrete justification or the legal or factual explanation for changing the 2020 TDN Rule.

Response: OSMRE disagrees. In the preambles to both the proposed and final rules, OSMRE has demonstrated sufficient legal and factual reasons for the revisions. This demonstration includes a closer adherence to SMCRA's statutory requirements, which OSMRE discussed in detail in the preamble to the proposed rule. Additionally, OSMRE observed instances while implementing the 2020 TDN Rule, as discussed in section I.B of this preamble, where the TDN process was delayed as OSMRE sought and considered information from SRAs before issuing a TDN or otherwise disposing of the citizen complaint.

Comment: Some commenters asserted that OSMRE did not have sufficient experience (at most one year) implementing the 2020 TDN Rule to support the rule changes. The commenters requested examples, data, and facts to justify the rule, including specifically how the 2020 TDN Rule compromised public protections, created delays for OSMRE's consideration of some possible violations, caused communication breakdown between OSMRE and SRAs, and created burdens by having the complainant notify the SRA simultaneously with or before notifying OSMRE of any potential violations. These commenters also asked for identification of any material delays discussed in post-2020 OSMRE reports, including State Oversight Reports, OSMRE Annual Reports, and budget justifications.

Response: OSMRE has an independent duty to enforce SMCRA in order to “assure appropriate procedures are provided for public participation in . . . the programs established by the Secretary or any State under this Act . . . .” 30 U.S.C. 1202(i), 1211(c)(2). Since the 2020 TDN Rule's promulgation, citizen groups have raised legal and practical issues about it with OSMRE, specifically about actual and perceived barriers to filing citizen complaints, the length of time it takes for OSMRE to issue TDNs, and the overall time it takes for possible violations to be addressed under the 2020 TDN Rule. Regardless of the time that the 2020 TDN Rule has been in effect, OSMRE has an obligation to seriously consider whether it caused delays or other unintended effects and was the best interpretation of SMCRA.

Notably, the commenters do not identify any specific data that is needed to understand the justification for the rule but instead suggest, for example, that OSMRE should have sought data from the States to support this rule. OSMRE did not request any specific data from SRAs because OSMRE already had all of the information it needed to review the amount of time it took under the 2020 TDN Rule to issue a TDN or otherwise address a citizen complaint. OSMRE has been monitoring implementation of the 2020 TDN Rule from the outset and has observed that there is often a lag time of a month or more between the time OSMRE receives a citizen complaint and when a TDN is issued or the citizen complaint is otherwise resolved. Moreover, one commenter noted that it was aware of an instance where it took OSMRE almost 60 days to issue a TDN after receiving a citizen complaint. OSMRE notes there have been additional instances when there have been several month lags between the time OSMRE receives a citizen complaint and the time it notifies the citizen complainant that it does not have reason to believe a violation exists. OSMRE believes the 2020 TDN Rule would have continued to lead to enforcement delays. The documented instances of delay demonstrate how the 2020 TDN Rule is contrary to the immediate process set forth in 30 U.S.C. 1271(a). To address this issue, this final rule eliminates the 2020 TDN Rule's potential for an open-ended, information gathering process—including obtaining information from an SRA—before OSMRE determines whether it has reason to believe a violation exists.

Comment: One commenter asserted the proposed rule was generated by OSMRE Headquarters staff without meaningful consultation with OSMRE's regional or field office staff.

Response: This comment is not accurate. OSMRE field staff, along with Headquarters staff, participated in the rule development team since its inception. OSMRE developed this rule with proper input from qualified staff.

Comment: One commenter agreed with OSMRE that citizens are burdened by the existing TDN process and supported reverting to the pre-2020 rule process.

Response: OSMRE appreciates this comment. This final rule will reduce burdens on citizens to file citizen complaints and otherwise bring concerns to OSMRE's attention. To arrive at this final rule, OSMRE reviewed the statutory and regulatory language as well as implementation of the citizen complaint and TDN processes through the years and incorporated changes that ease the burden on citizens to notify OSMRE of a possible violation.

Comment: Some commenters asserted that the proposed changes to the 2020 TDN Rule would create additional burdens, promote duplication of resources, increase costs, and decrease productivity for SRAs and subvert their jurisdiction.

Response: OSMRE does not agree with these commenters' assertions. While this final rule reduces burdens on citizen complainants and the time it takes to resolve possible violations, it will not simultaneously increase SRA workloads in an appreciable manner and will not lead to duplication of inspections and enforcement efforts between OSMRE and SRAs. As has been the case for many years, after OSMRE issues a TDN to an SRA, the SRA has the first opportunity to address or explain the underlying issue. OSMRE will not second guess an SRA's response to a TDN unless it is arbitrary, capricious, or an abuse of discretion. As this rule is consistent with 30 U.S.C. 1271(a), there is nothing in this rule that infringes upon or subverts an SRA's jurisdiction, obligations, or implementation of its approved State program.

In addition, as specified in § 842.11(b)(1)(i) of the final rule, before issuing a TDN, OSMRE will review only “information received from a citizen complainant, information available in OSMRE files at the time that OSMRE is notified of the possible violation . . . , and publicly available electronic information” and not information from a State when it decides if it has reason to believe a violation exists. As a result, under the final rule, a State need not expend the time and effort to provide OSMRE with a response at the reason-to-believe stage and then again if OSMRE ultimately sends a TDN to a State. This rule ensures that States need only respond to OSMRE about a citizen complaint once—in response to a TDN, if OSMRE determines that it has reason to believe a violation exists. Therefore, OSMRE believes this final rule will not increase the burdens on SRAs and may eliminate duplicative responses from the SRAs.

Comment: One commenter noted that, according to OSMRE, one of the “[t]he primary goals of this rulemaking [is] to reduce burdens for citizens to engage in the TDN process.” However, according to this commenter, there is no statutory directive for citizens to participate in the TDN process.

Response: OSMRE disagrees with the tenor of this comment. Section 521 of SMCRA serves as the statutory underpinning for the TDN process. It provides that OSMRE can receive information, in writing, from “any person” about a possible SMCRA violation. 30 U.S.C. 1271(a)(1). However, that provision does not exist in a vacuum; 30 U.S.C. 1267(h)(1) provides that “any person who is or may be adversely affected by a surface mining operation” may contact OSMRE about “any violation of this Act which he has reason to believe exists at the surface mining site.” These two provisions operate together so that the receipt of information from a citizen under 30 U.S.C. 1267(h)(1) is one way that the TDN process may be initiated.

As the House of Representatives explained in a report preceding SMCRA's enactment, citizens play an important role in the enforcement of SMCRA and approved State programs. The House report states:

Comment: Some commenters asserted that OSMRE did not engage with SRAs in the development of the rule as should be expected with cooperative federalism; accordingly, the commenters urged OSMRE to abandon the rulemaking.

Response: OSMRE disagrees. In drafting this rule, OSMRE followed all legal requirements by seeking feedback from SRAs and other stakeholders through the notice and comment process described in the Administrative Procedure Act.

Comment: One commenter stated that the proposed rule attempts to “federalize” issues with State permits because, according to the commenter, any disagreement between OSMRE and an SRA over a State permitting decision could be subject to a Federal TDN and potentially other Federal enforcement actions instead of resting solely with the SRA, and OSMRE taking oversight action, if necessary, under 30 CFR 733.13 to substitute Federal enforcement of State programs or withdraw approval of the State program. In addition, this commenter opines that this interpretation transgresses the careful and deliberate statutory allocation of regulatory jurisdiction, violates the specific statutory procedures and deadlines for appealing State permits, and violates the exclusive avenue for administrative and judicial review of all State regulatory program decisions. As support for its position, the commenter cites court decisions, a 2005 letter decision by the Department's Assistant Secretary for Land and Minerals Management (ASLM) (which was attached to the comments), a Departmental 2007 rule preamble, and an OSMRE Director's 2010 memorandum decision.

Response: OSMRE disagrees with this comment. OSMRE has reviewed the documents cited by the commenter and has determined that nothing in this final rule conflicts with SMCRA or relevant case law. While the Department has articulated different positions related to the issuance of TDNs for permitting issues, OSMRE concludes that the positions it takes in this final rule best comport with SMCRA section 521(a)(1).

The 2005 ASLM letter decision rejected an environmental group's request for OSMRE to conduct a Federal inspection of a mine that an SRA had recently permitted. The letter described the request as asking “OSM to review the permit decision of [the SRA] with which you disagree” and concluded that “[a] request for inspection under section 517(h)(1) [of SMCRA] is not an alternative avenue for seeking review of the regulatory authority's decision to issue a permit.” The letter also explained that the request did not provide “any basis to conclude that a violation exists at the mine site.” In addition, the letter referenced the SRA's “exclusive jurisdiction” under SMCRA and cited several judicial decisions in support of that proposition: Bragg v. West Virginia Coal Ass'n, 248 F.3d 275, 293-94 (4th Cir. 2001), Pa. Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 318 (3rd Cir. 2002), Haydo v. Amerikohl Mining Inc., 830 F.2d 494, 497 (3rd Cir. 1987), and In re: PSMRL, 653 F.2d at 519. This commenter also cited these and other cases in support of its position.

A close examination of the cases cited in the 2005 ASLM letter decision reveals that they do not address whether OSMRE has oversight and enforcement authority over State permitting decisions under section 521(a) of SMCRA and OSMRE's implementing regulations. In fact, Bragg and Pa. Fed'n of Sportsmen's Clubs expressly recognize that, despite the asserted exclusivity of a primacy State's jurisdiction, OSMRE retains oversight authority in primacy States. See Bragg, 248 F.3d at 289, 294 (primacy State's “exclusive jurisdiction” subject to Federal oversight and enforcement under section 521 of SMCRA); Pa. Fed'n of Sportsmen's Clubs, 297 F.3d at 317, 325, 328 (OSMRE's “oversight jurisdiction” under 30 CFR 843.12(a)(2) includes inspection of specific mines and issuance of notices of violation to State permittees pursuant to the TDN process). Therefore, the position taken in the 2005 letter decision goes beyond the holdings of the cited cases.

Moreover, the 2010 OSMRE Director's guidance (with which the Office of the ASLM officially concurred) analyzed and rejected the rationale set forth in the 2005 ASLM letter. The 2010 Director's guidance “reaffirm[ed] OSM's historic position on this issue” and “clarifie[d] that OSM's TDN and pertinent Federal enforcement regulations at 30 CFR parts 842 and 843 apply to all types of violations, including violations of performance standards or permit conditions and violations of permitting requirements.”

The 2007 rule preamble, 72 FR 68000, 68024-26, also does not support the commenter's assertions. That preamble relied in part on the 2005 ASLM letter decision and the judicial decisions cited therein to support the withdrawal of a specific regulatory provision related to “State-issued permits that may have been improvidently issued based on certain ownership or control relationships,” which had been previously codified at 30 CFR 843.21. See 72 FR at 68024. Before it was removed, that section provided for “direct Federal inspection and enforcement . . . if, after an initial notice, a State failed to take appropriate action or show good cause for not taking action with respect to an improvidently issued State permit.” Id. When OSMRE withdrew that specific regulatory provision, however, it did not amend the general TDN regulatory provision that this final rule has revised (§ 842.11). Indeed, that preamble did not even mention § 842.11. In any event, the 2007 rule preamble language does not expressly pertain to how OSMRE interpreted § 842.11, and, as mentioned, OSMRE concludes that its positions in this final rule best comport with SMCRA and the relevant implementing regulations. Moreover, as discussed above, in 2010, the OSMRE Director, with the concurrence of the Office of the ASLM, rejected the rationale in the 2005 ASLM letter decision.

The 2007 rule preamble cited Nat'l Mining Ass'n v. U.S. Dep't of the Interior, 177 F.3d 1 (D.C. Cir. 1999) ( NMA v. DOI II ), in support of rescinding former § 843.21. 72 FR at 68025-26. The better reading of that opinion, however, is the Department's contemporaneous interpretation in the 2000 preamble, see, e.g., 65 FR 79582, 79652. In 2000, the Department explained, among other things, that, in the NMA v. DOI II decision, “the court upheld our ability to take remedial action relative to improvidently issued State permits, but found that our previous regulations `impinge on the “primacy” afforded states under SMCRA insofar as they authorize OSM to take remedial actions against operators holding valid state mining permits without complying with the procedural requirements set out in section 521(a)(1) of SMCRA, 30 U.S.C. 1271(a).' ” 65 FR at 79652 (citing NMA v. DOI II, 177 F.3d at 9). In 2000, the Department revised the regulation to conform with the court's decision. The 2007 rule preamble later set forth an alternative interpretation of the relevant NMA v. DOI II holding, which the Department no longer supports. See, e.g., 2010 OSMRE Director's memorandum decision.

In addition, under section 503(a) of SMCRA, 30 U.S.C. 1253(a), upon OSMRE's approval of a State program, a State “assume[s] exclusive jurisdiction over the regulation of surface coal mining and reclamation operations, except as provided in sections 1271 [SMCRA section 521] and 1273 of this title and subchapter IV of this chapter . . . . ” (Emphasis added.) This final rule implements section 521 of SMCRA and thus is an exception to a State's otherwise-exclusive jurisdiction. SMCRA also refers to a State's “primary responsibility.” See, e.g., 30 U.S.C. 1291(26) (defining “State regulatory authority” to mean “the department or agency in each State which has primary responsibility at the State level for administering [SMCRA].”). However, this language is describing which State department or agency will administer SMCRA at the State level and does not remove OSMRE oversight in any way. The final rule is consistent with the State regulatory authority's responsibility to administer SMCRA, which affords the SRA the first opportunity to address the underlying issue identified in a TDN. And OSMRE is prepared to accept a State's response to a TDN unless it is arbitrary, capricious, or an abuse of discretion, which is an appropriately high level of deference.

OSMRE disagrees with the commenter's other assertions about how this rule impinges on State primacy. This final rule does not allow OSMRE to intervene in a State's permitting action while the permit application is under review, nor does it contain any language that circumvents the process for appealing a State's permitting actions. A TDN is appropriate to address situations where a permittee is not mining in accordance with the approved permit or the approved State permit allows the permittee to mine in a manner that is inconsistent with the approved State program.

In sum, this final rule is consistent with SMCRA and binding legal precedent.

Comment: Some commenters asserted that in section 521(a)(1) of SMCRA, “any person” who can be in violation of SMCRA or the applicable State program means a permittee, not the SRA.

Response: As explained in section I.B of this preamble, OSMRE concludes that “any person” in violation under section 521(a)(1) of SMCRA includes an act or omission by an SRA that is inconsistent with its State program. The relevant SMCRA language refers to “any person [ ] in violation of any requirement of this Act or any permit condition required by this Act . . . .” As noted above, the preamble to the 2020 TDN Rule stated that “any person” who can be in violation of SMCRA or a State regulatory program “does not include a State regulatory authority, unless it is acting as a permit holder.” 85 FR at 75176; see also id. at 75179. However, after careful consideration and review, OSMRE concludes that an SRA is not exempt from the meaning of the phrase “any person” in this context. For over four decades, the Federal regulations at 30 CFR 700.5 have defined “any person” to include “any agency, unit, or instrumentality of Federal, State or local government . . . .” This definition would clearly include an SRA, which is an agency or unit of a State government. OSMRE did not change this general definition in the 2020 TDN Rule even though it excluded an SRA from “any person” in the TDN context. OSMRE now concludes that the term “any person” in 30 U.S.C. 1271(a)(1) should match this long-standing definition. As a result, a TDN could be issued for a possible violation if the SRA issues a permit that is not in compliance with an approved State program or that authorizes a permittee to mine in a manner that is inconsistent with that program. If an SRA issues such a permit, that would be a violation of a “requirement of this Act” or the applicable State program. Thus, under this final rule, if an SRA issues a permit that would allow a permittee to mine in a manner that is inconsistent with the approved permit or the approved State program, or that fails to include one or more required provisions of the approved State program, that will be considered as a possible violation for TDN purposes.

Comment: Some commenters supported the proposed rule, stating that it properly recognized that SMCRA intended “permit defects” to be among the types of violations that OSMRE must address under the TDN process as an avenue for citizens to raise concerns with permit-related actions that may impact their lives.

Response: OSMRE appreciates these commenters' support for the proposed change requiring a TDN be sent to an SRA for a possible violation in the form of a permit defect. As outlined in the preamble to the proposed rule and discussed in sections 1.B and III.F of this preamble, OSMRE agrees with these commenters and concludes that a close reading of SMCRA indicates that permit defects, just like all other possible violations, are subject to a TDN. Thus, under this final rule, OSMRE, upon forming reason to believe a violation exists, will consider permit defects under 30 CFR part 842.

Comment: A few commenters asserted that OSMRE should ensure that the regulations make clear that a violation is “earth bound.” As support, the commenters noted that, when discussing a Federal inspection, SMCRA section 521(a)(1) refers to alleged violations occurring at a surface coal mining operation and that the last sentence of that provision allows citizen complainants to accompany an inspector on a Federal inspection.

Response: We disagree with the conclusions the commenters reach from the statutory provision cited. In order to determine if a surface coal mining operation is meeting the approved program or any permit condition as required by both the existing and final rule at § 842.11(b)(1)(i), it is sometimes necessary for OSMRE to not just observe a mine site, but also to review and examine the SRA's permitting material. As a result of this review, a violation may be identified in those materials regardless of whether that violation can also be observed at the mine site. Indeed, the existing Federal regulations require SRAs to make records related to surface coal mining operations available to OSMRE. 30 CFR 840.14(a). Because OSMRE sometimes needs to review the permitting files, OSMRE has historically viewed these files and related materials as items that should be considered during a Federal inspection. OSMRE adheres to that long-standing approach in this final rule.

Comment: A few commenters asserted that the 2023 proposed TDN rule would produce “significant new, unjustified” exchanges of paper between OSMRE and the SRA, resulting in increased burden.

Response: OSMRE's analysis under the Paperwork Reduction Act indicates that there will be no new OSMRE requests for information as a result of the changes in this final rule. Consequently, the final rule will not increase the regulatory burden. Under this final rule, OMSRE will only consider information contained in a citizen complaint, information already in OSMRE's files at the time of a citizen complaint, and publicly available electronic information to inform whether OSMRE has reason to believe a violation may be present.

OSMRE strives to reduce redundancy particularly when a simple search for publicly available electronic records can often adequately inform the “reason to believe” analysis and determination. As such, there is no additional transactional cost or burden created between the SRA and OSMRE when available data from the three identified sources provides sufficient information collection to reach a sound decision on whether OSMRE has reason to believe. Based on OSMRE's experience, it does not believe more TDNs will result from implementing this final rule when viewed in the context of OSMRE's history related to writing TDNs. Additionally, OSMRE estimates that the number of TDNs and associated burden hours will stay the same as what is currently authorized by OMB 1029-0118. Moreover, the SRAs already have a legal responsibility to address underlying possible violations in accordance with their approved State programs. A TDN is OSMRE's mechanism to notify an SRA of a possible violation in accordance with OSMRE's statutorily mandated oversight responsibilities. Even if an increase in TDNs does result in an SRA needing to generate more responses to OSMRE, addressing substantively similar possible violations as a single State regulatory program issue and not requesting information from the SRA at the time OSMRE is determining whether it has reason to believe a violation exists will introduce efficiencies in the process and limit paperwork burdens in those situations.

Comment: Some commenters asserted that the rule “totally redefines the relationship between itself and the States by essentially eliminating State primacy under SMCRA” such that OSMRE must prepare a federalism summary impact statement.

Response: OSMRE disagrees. As explained in the responses above, this rule neither makes OSMRE a co-regulator in primacy states nor otherwise deviates from SMCRA's statutorily defined cooperative federalism. SRAs will still retain exclusive jurisdiction subject to OSMRE's oversight and enforcement authority set forth in 30 U.S.C. 1271 and 1273. The final rule focuses on OSMRE's process for handling citizen complaints, issuing TDNs, and OSMRE's oversight responsibilities, all of which are provided for in 30 U.S.C. 1271(a)(1)—an exception to the exclusive jurisdiction of the SRAs. If an SRA receives a TDN from OSMRE, the SRA will continue to have the first opportunity to address possible violations in accordance with their approved State program, which remains codified in its State laws and regulations. While revising the existing regulations governing the TDN process will have a direct effect on the States' and the Federal Government's relationship with the States, this effect will not be significant, as it will neither impose substantial unreimbursed compliance costs on States nor preempt State law. OSMRE also does not believe more Federal inspections and Federal enforcement actions in primacy States will result from this rule. As discussed in the response to the preceding comment, this rule will not significantly increase burdens on SRAs to address and resolve underlying issues. As such, a federalism summary impact statement is not required.

Comment: A few commenters stated that the TDN rule would increase regulatory burdens on SRAs so OSMRE needs to prepare a regulatory flexibility analysis under the Regulatory Flexibility Act.

Response: OSMRE disagrees with these comments because, as discussed in prior responses to comments, the new rule provisions are considered enhancements in aiding more efficient and effective enforcement rather than adding new significant regulatory burden on SRAs.

Comment: A few commenters stated that changes in the regulatory text that are editorial or introduce plain language changes in the rule text may be interpreted by courts as substantive changes. These commenters suggested that OSMRE should not make any editorial changes so that a court cannot reinterpret the intended meaning.

Response: OSMRE disagrees with the commenters. OSMRE has made certain changes in language pursuant to the Plain Writing Act of 2010 to improve the readability of the rule that do not affect its substance. Any challenges to these minor, non-substantive wording changes would likely withstand legal scrutiny, particularly when OSMRE has noted that it did not intend substantive changes in meaning.

This section presents a summary of the final rule revisions, section-by-section, accompanied with summaries of comments and OSMRE's responses to the comments. This section starts with the revisions to 30 CFR part 842, followed by the revisions to 30 CFR part 733, to mirror the sequence of the TDN process ( i.e., issuance of a TDN under part 842, followed by possible grouping of substantively similar possible violations into a State regulatory program issue under part 733).

Summary of final rule provisions at 30 CFR 842.5: The final rule creates a new definitions section at 30 CFR 842.5 that includes definitions for the terms “citizen complaint” and “ten-day notice.” The definition of “citizen complaint” includes the word “possible” to modify “violation,” indicating that not all complaints need to contain an affirmative allegation of a violation but can still identify a possible violation. The definition of “ten-day notice” provides a uniform understanding of the term, emphasizing that a TDN is a communication mechanism that OSMRE uses to inform an SRA of a possible violation of its State regulatory program when OSMRE has reason to believe such a violation exists.

Comment: Some commenters supported the proposed definition of “ten-day notice” and the recognition that the TDN is a communications mechanism and not a judgment or determination on the performance of the permittee, operator, or SRA.

Response: OSMRE appreciates the support and again reiterates that a TDN is not an enforcement action in and of itself and the issuance of a TDN is not a negative reflection on the permittee, operator, or the SRA. It is simply the mechanism that OSMRE uses to inform an SRA about a possible violation so that the SRA can investigate that allegation and take action to abate the violation if the SRA determines a violation exists.

Comment: Some commenters stated that “citizen complaint” and “ten-day notice” already have sufficient meaning and do not need to be defined.

Response: OSMRE disagrees with these comments. While implementing the SMCRA program, OSMRE has heard various proposed interpretations for both terms from citizens, SRAs, and among its own staff. For example, during TDN implementation, OSMRE has observed a range of references to citizen complaints that characterize the complaints as anything ranging from any information received to information that must be “perfected” before it would be considered a citizen complaint. These disparate definitions mean that different people may treat information received from citizens differently. For example, one person may consider the information received and start the TDN process whereas another person may review similar information, deem it unperfected, and delay action or forgo issuing a TDN. OSMRE is introducing regulatory certainty by establishing uniform definitions of these common terms.

Comment: One commenter asserted that the proposed changes to the TDN process convert the TDN from a communication tool to an enforcement tool.

Response: OSMRE does not agree with this comment. There are no enforcement provisions associated with a TDN itself, and there is no enforcement downstream of a TDN unless a State does not respond to the TDN or the response is arbitrary, capricious, or an abuse of discretion. That standard is deferential, and, in this regard, this final rule is no different than prior iterations of the rules. As such, a TDN is accurately described as a communication mechanism between OSMRE and an SRA about a possible violation.

Comment: One commenter suggested that OSMRE specify that the definition of “citizen complaint” includes “any information received from any person by the OSMRE of a condition or practice that might be a possible violation of the Act . . .” (emphasis added to identify the commenter's suggested additions to the rule text).

Response: As OSMRE understands the comment, adding this language to the definition of “citizen complaint” would not improve the definition of the term or add any clarity because the suggested phrase is encompassed by the definition of the term in this final rule. If a questionable condition or practice is occurring, the key question is whether it constitutes a possible violation of a State program. If OSMRE has reason to believe a possible violation exists, OSMRE will issue a TDN to the relevant SRA for the condition or practice. The proposed language is therefore unnecessary and could imply that other possible violations of a State program are not encompassed by the definition.

Comment: One commenter suggested changing the term “ten-day notice” to “Ten-Day Notification to Respond” because the proposed rule will create two types of TDNs, one that results from a possible SRA violation and a second that results from a citizen complaint.

Response: OSMRE disagrees that this rule creates two types of TDNs, and it sees no benefit in revising the term or in using two terms to describe a single process. OSMRE determines whether it has reason to believe a violation exists from any source of information concerning a possible violation, including information from a citizen or from an oversight inspection. If it makes such a determination, OSMRE will send the SRA a TDN, regardless of whether that possible violation stems from an action of the permittee or from an SRA issuing a permit that is inconsistent with the approved State program or that would allow a permittee to mine in a manner that is inconsistent with the State program.

Summary of final rule revisions to 30 CFR 842.11(b)(1)(i): As in the proposed rule, the final rule limits the sources of information that OSMRE reviews when determining whether OSMRE has reason to believe a violation exist. The final rule amends the text of § 842.11(b)(1)(i), in pertinent part, to state that the authorized representative determines whether there is “reason to believe” that there is a violation based on “information received from a citizen complainant, information available in OSMRE files at the time that OSMRE is notified of the possible violation (other than information resulting from a previous Federal inspection), and publicly available electronic information.”

Comment: Some commenters asserted that the proposed rule impermissibly raises the bar on Federal action, impermissibly delays notification to the SRAs through the TDN process, and is inconsistent with SMCRA because OSMRE would delay issuance of a TDN until after a records search of all electronic databases, any complaint information, and other information not in the agency's possession when the complaint is received.

Response: OSMRE disagrees with these comments. SMCRA affords OSMRE discretion to establish whether OSMRE has reason to believe a violation exists based on “any information available.” 30 U.S.C. 1271(a)(1). OSMRE review of these three sources of information that are available to it at the time the citizen complaint is received neither “raises the bar” with respect to information collection nor delays notification to a State of a possible violation because OSMRE must still form the predicate belief in a possible violation. In this rule, OSMRE merely explains the processes it will use to form that belief. Thus, OSMRE will review the citizen complaint and information that OSMRE already has in its files or from publicly available electronic information. In addition, OSMRE, in its expertise, has sufficient knowledge to identify pertinent publicly available electronic information that may be relevant to the citizen complaint and that will help it to determine whether it has reason to believe a violation exists. OSMRE does not envision exhaustive, time-consuming reviews of any of these sources of information.

This final rule eliminates the potential that the 2020 TDN Rule could allow for an open-ended, information gathering process before OSMRE determines whether it has reason to believe a violation exists; however, the final rule retains the 2020 TDN Rule's removal of the “if true” standard. Therefore, this final rule will allow OSMRE to proceed more quickly and efficiently than under the 2020 TDN Rule when making a reason to believe determination. At the same time, this final rule will allow OSMRE to exercise its expertise in reviewing citizen complaints to determine whether there is reason to believe a possible violation of SMCRA, the regulations, the State program, or permit condition exists before deciding whether to send the SRA a TDN.

Comment: Some commenters supported OSMRE's limiting of the information it can review when establishing reason to believe to that information found in the complaint, publicly available electronic information, and information OSMRE already possesses.

Response: OSMRE appreciates these comments. Limiting the information to these three sources will result in an expeditious “reason to believe” determination while at the same time making the process more efficient.

Comment: Some commenters agreed that the complainant may not understand SMCRA's technical details, but an agency official, trained in interpreting regulations, can determine if a possible violation exists and notify the SRA.

Response: OSMRE agrees with these comments. OSMRE has developed considerable expertise since the enactment of SMCRA in 1977 as it implements SMCRA in Federal program States and on Indian lands across the country and provides oversight of the 24 State programs. As stated above, this final rule allows OSMRE to use this expertise to initially evaluate a citizen complaint along with limited sources of other information, determine if a possible violation exists, and, if so, let the SRA know using a TDN.

Comment: One commenter supported the changes that limit the information OSMRE can consider when evaluating a citizen complaint and restore the requirement that complaints contain “information” rather than “documentation.”

Response: OSMRE appreciates the commenter's support. SMCRA affords citizens with the opportunity to report possible violations to either the SRA or OSMRE. Likewise, it contains a low threshold with respect to OSMRE establishing reason to believe a violation exists and stops short of requiring documentation from a citizen complainant before OSMRE decides whether to send a TDN to the SRA. Thus, in final sections 842.11(b)(1)(i) and 842.11(b)(2), OSMRE will not require a citizen to provide documentation; instead, OSMRE will consider any information that a citizen complainant provides.

Comment: Some commenters asserted that excluding SRA input will result in redundant, duplicative enforcement processes.

Response: OSMRE disagrees. OSMRE's goal is not to exclude SRA input but rather to remove a process that is duplicative of the TDN process itself, which will expedite OSMRE's initial evaluation of the prospective violation. In addition, under SMCRA, the TDN is the communication mechanism that OSMRE sends to the SRA whenever OSMRE has reason to believe a violation exists. As explained above, OSMRE will only take enforcement action if the SRA fails to respond to the TDN or the response is arbitrary, capricious, or an abuse of discretion. Thus, there will not be redundant enforcement processes.

Comment: One commenter stated that State-supplied information should be considered when establishing reason to believe a violation exists.

Response: OSMRE disagrees with the commenter. OSMRE concludes that seeking and considering information from an SRA before making a reason to believe determination is not the best interpretation of section 521(a)(1) of SMCRA and creates a duplicative process within the TDN process. However, publicly available electronic information may include publicly viewable SRA permitting databases, water monitoring and reporting databases, GIS applications, and other easily viewable information.

Comment: A few commenters suggested that OSMRE should develop an internal OSMRE policy on information collection in lieu of this rulemaking.

Response: OSMRE recognizes that it may have been able to use internal policy guidance, such as a directive, to clarify to its own staff what types of information OSMRE could consider when evaluating a citizen complaint to determine if it has reason to believe a violation exists. However, given the indirect impacts on SRAs and the public as well as SMCRA's focus on “assur[ing] appropriate procedures are provided for public participation[,]” 30 U.S.C. 1202(i), we concluded that regulations, rather than internal and non-binding policy documents, were the appropriate mechanism because they are more transparent, easily accessible, and create more regulatory certainty than an internal guidance document. OSMRE will continue to employ internal policy documents and directives, as necessary, to ensure that OSMRE staff are properly and consistently implementing the final rule. Therefore, OSMRE intends to revise the relevant policy and guidance documents after this final rule becomes effective to ensure there are no conflicts between the final rule and preexisting guidance.

Comment: Some commenters asserted that delays in the TDN process will result from OSMRE reviewing all information contained in OSMRE files, publicly available electronic information, and information contained in a citizen complaint.

Response: OSMRE recognizes that there may be some small delay as OSMRE reviews information in the citizen complaint, information in OSMRE's files, and publicly available electronic information; however, this delay should be minor compared to the delays that have sometimes occurred under the 2020 TDN Rule as OSMRE sought additional information from an SRA and thoughtfully considered the information that had been received. By allowing OSMRE to consider only these three sources of information available to it at the time it receives the citizen complaint, OSMRE should be able to more expeditiously establish whether reason to believe a possible violation exists, and, if so, send the SRA a TDN so that the SRA can conduct an investigation and respond to OSMRE within ten days. Therefore, while it may be marginally faster for OSMRE to act simply as a pass through for citizen complaints, this process is streamlined in comparison to the existing rule.

Comment: Some commenters assert that the scope of information considered in the proposed rule is inconsistent with SMCRA, which, according to these commenters, requires OSMRE to consider “all information available.”

Response: OSMRE disagrees with the commenters' assertion that OSMRE must consider “all information available.” SMCRA section 521(a)(1) provides that OSMRE should consider “any information available” to determine if it has reason to believe a violation exists, not all information that tends to disprove the existence of a possible violation. Even in the 2020 TDN Rule, OSMRE recognized that it should not consider “all information available” and sought to put sideboards on data collection by basing a reason to believe determination on “any information readily available.” 30 CFR 842.11(b)(1)(i) ( see also § 842.11(b)(2) (referencing “any information readily available”)). Moreover, the preamble to the 2020 TDN Rule clearly explained that, to ensure the process would proceed quickly and not become “open-ended,” OSMRE would only consider “any information that is accessible without unreasonable delay” to be “readily available information.” 85 FR at 75163.

However, because the 2020 TDN Rule did not limit sources of information it considered to be “readily available” as this final rule does, in some instances there have been extensive investigations and data collection before issuance of a TDN or before OSMRE determined whether reason to believe existed. This result is contrary to section 521(a)(1), which focuses on correcting possible violations expeditiously.

To reduce any delay, the final rule provides that OSMRE should use its best professional judgment, including any information it has on hand when it receives the citizen complaint, to determine whether it has reason to believe a violation exists. This approach strikes a balance between collecting all available information, which could include information obtained from any source after the citizen complaint is received, along with the attendant delays in seeking and considering such information, and considering only information in a citizen complaint, which was the case prior to the 2020 TDN Rule. The more limited information that OSMRE will consider under this final rule fully comports with the statutory directive to consider “any information available” to determine whether OSMRE has reason to believe a violation exists, as well as the structure of section 521(a)(1), which seeks to resolve possible violations quickly.

Comment: One commenter asked if OSMRE could provide an example of the information that will no longer be used for a reason to believe determination if the objective of the change is to expedite the TDN process.

Response: Under the final rule, OSMRE will only consider information contained in its files at the time it is notified of a possible violation, information contained in a citizen complaint, and publicly available electronic information. All other sources of information will not be considered when OSMRE determines whether it has reason to believe a violation exists. Information excluded could include information provided by an SRA or permittee after OSMRE received the citizen complaint that is not publicly available. These limitations will help to prevent an open-ended investigation of the possible violation before OSMRE determines whether to issue a TDN.

Comment: One commenter noted that the proposed rule suggested that OSMRE will consider verbal allegations when making “reason to believe” determinations and recommends removing the option for an oral complaint to prevent inconsistencies between verbal and written complaints.

Response: Accepting a verbal citizen complaint and request for a Federal inspection, followed by submission of the complaint in writing, has been a feature of the regulations for many years. See 30 CFR 842.12(a). In order to ensure public participation in the enforcement of SMCRA, especially from those who may not be well-versed in SMCRA or its regulations, as well as comply with the requirements of section 517(h)(1), OSMRE will continue to allow a verbal citizen complaint as long as the oral complaint is followed up in writing.

Summary of final rule revisions to 30 CFR 842.11(b)(1)(ii): At 30 CFR 842.11(b)(1)(ii)(B)( 1 ), the final rule adds a new sentence at the end of the existing provision. In the final rule, the sentence reads: “Where appropriate, OSMRE may issue a single ten-day notice for substantively similar possible violations found on two or more permits, including two or more substantively similar possible violations identified in one or more citizen complaints.” In the proposed rule, OSMRE proposed to include the phrase “involving a single permittee” after “two or more permits.” The rationale for this change to the proposed rule is discussed in section II of this preamble.

At 30 CFR 842.11(b)(1)(ii)(B)( 3 ), this final rule also eliminates the language from the existing regulations that allowed for the possibility that corrective action plans for State regulatory program issues under 30 CFR part 733 could be a form of “appropriate action” in response to a TDN. Instead, in appropriate circumstances, under the final rule at new § 842.11(b)(1)(ii)(B)( 4 )( iii ), State regulatory program issues addressed under final § 773.12, and associated action plans, will be included under the “good cause” exception for not acting in response to a TDN, aligning the regulations more closely with statutory requirements. Finally, the good cause provision of the final rule at § 842.11(b)(1)(ii)(B)( 4 )( ii ) outlines specific time limits for SRAs to request extensions to determine whether a violation exists, with a maximum cap of 90 additional days, emphasizing expeditious resolution.

Comment: Some commenters noted that SMCRA section 521(a)(1) authorizes the issuance of a TDN only when there is reason to believe that a violation—not the plural “violations”—exists.

Response: To the extent that these commenters are suggesting that OSMRE must issue a separate TDN for each individual possible violation, OSMRE disagrees with the commenters. SMCRA section 521(a)(1) does not limit the number of possible violations that can be included in a TDN. Nor does SMCRA limit the number of substantively similar possible violations that OSMRE can group together as a single State regulatory program issue.

Comment: Some commenters asserted that an action plan should not count as either appropriate action or good cause for not taking such action. The commenters also asserted that an action plan does not replace immediate enforcement action if violations become manifest.

Response: As noted above, we agree with the commenters that development of an action plan does not constitute appropriate action that in and of itself corrects a violation in a manner consistent with SMCRA. As such, OSMRE has concluded that it is not correct to consider development of an action plan as appropriate action in response to a TDN.

We disagree with the commenters, however, that development of an action plan could not be good cause for not taking appropriate action. As noted in this final rule, OSMRE added § 842.11(b)(1)(B)( 4 )( iii ) to specify that State regulatory program issues addressed through a § 733.12 action plan could constitute good cause. An action plan would ensure the violation is corrected, even if the correction does not occur until after the plan is executed. Allowing a State to invoke good cause for addressing a possible violation through an action plan does not, however, mean that the underlying violation will not be corrected. Instead, it means that the correction of the violation may occur later as the systematic issues are addressed, which could be as late as the implementation of the action plan, but may be sooner. For example, under this final rule at § 733.12(d), even if a possible violation is being addressed as a State regulatory program issue, an SRA can take direct enforcement action under its State regulatory program and OSMRE can take additional appropriate oversight enforcement action. Alternatively, if OSMRE has adequate proof of an imminent harm, OSMRE would immediately conduct a Federal inspection even if OSMRE is also developing a part 733 action plan.

Comment: Some commenters recommended that OSMRE should allow a request for additional time to be considered an appropriate action.

Response: A request for additional time to review a specific situation is not considered an “appropriate action to cause the said violation to be corrected” as required by 30 U.S.C. 1271(a)(1), but more appropriately falls under the good cause provision for not acting to correct the violation within ten days. Requesting more time to evaluate a situation can be an appropriate response to a TDN, but it should not be confused with an appropriate action to correct the violation.

Comment: One commenter requested that OSMRE retain the language in the 2020 TDN Rule that allows for a State issuance of a notice of violation (NOV) with appropriate remedial measures and deadlines to be regarded as appropriate action.

Response: The 2020 TDN Rule allowed OSMRE to consider an SRA's response indicating that it had written an NOV to the permittee for the possible violation contained in a TDN to be an appropriate action in response to a TDN. This final rule does not change that concept.

Comment: Some commenters asserted that use of action plans for violations erases the distinction between SMCRA section 521(a) “on-the-ground” violations and section 521(b) State regulatory program issues. The commenters stated that OSMRE must use its Federal substitution regulations when a State regulatory program issue is evident rather than developing an action plan or using the TDN process.

Response: OSMRE disagrees with this assertion. As explained in sections I.B and III.E of this preamble, SMCRA section 521(a) contains the conceptual framework for addressing a violation of “any person”—either a permittee's violation or a violation stemming from an SRA's improper implementation of its approved program. Addressing on-the-ground violations and State regulatory program issues through the § 842.11 process is consistent with SMCRA and OSMRE's approach in this rule.

Moreover, as we explained in the preamble to the 2020 TDN Rule, the addition of corrective action plans under § 773.12(a)(2) did not “significantly alter OSMRE's implementation of the SMCRA program” because OSMRE has used a similar process through guidance documents for years. 85 FR at 75153. The final rule retains the use of the action plan process “to more easily address, with the cooperation of the State regulatory authority, situations where an alleged violation can be traced to a systemic problem within an existing State regulatory program.” Id. at 75172. OSMRE maintains, as it did in the 2020 TDN Rule, that corrective action plans are “consistent with SMCRA's cooperative federalism approach, and OSMRE expects to use revised 30 CFR 733.12 more frequently than it has traditionally used its authority to substitute Federal enforcement or withdraw State program approval because it will allow OSMRE to work with a State regulatory authority to cooperatively correct a State regulatory program issue.” Id.

If, at any time, OSMRE is addressing a potential violation that is a State regulatory program issue and later concludes that the SRA is not effectively implementing, administering, enforcing, or maintaining any part of its approved State regulatory program, OSMRE may then also initiate procedures at § 733.13 to substitute Federal enforcement or withdraw approval of the State regulatory program. A State regulatory program issue by itself does not, at least initially, rise to the level of calling for substituting Federal enforcement or withdrawing the State program, especially if the state is working with OSMRE to implement an action plan. Identification of a State regulatory program issue, instead, is intended to provide an efficient process for an SRA to work with OSMRE to ensure it is effectively implementing its program before the State regulatory program issue “warrant[s] the rare remedies of substitution of Federal enforcement or withdrawal of an approved State program.” Id. at 75175.

Comment: Commenters stated that informal review afforded to an SRA under 30 CFR 842.11(b)(1)(iii) should not interfere with OSMRE's obligation to initiate a Federal inspection and enforcement action, as there is no legal authorization in the text or legislative history of SMCRA for OSMRE to wait for informal review to be complete before conducting a Federal inspection if OSMRE concluded, after receiving an SRA's TDN response, that the State failed to take appropriate action or did not have good cause for doing so.

Response: Existing 30 CFR 842.11(b)(1)(iii)(A) indicates that when OSMRE notifies an SRA that its response to a TDN does not constitute appropriate action or good cause, the State is entitled to seek informal review by OSMRE's Deputy Director. Also, in general, § 842.11(b)(1)(iii)(B) provides that no Federal inspection can be conducted, or corresponding enforcement action taken, until the informal review is completed. OSMRE did not propose to amend its informal review process and declines to make any changes now based on these comments. Because of the importance of these procedures, any such changes should be subject to full notice and comment, especially from the SRAs, who would be most affected by any changes.

Comment: One commenter asserted that actions plans should not be considered “good cause” for failing to take appropriate action because an action plan itself is a type of action. Thus, this commenter opined that when an SRA enters into an action plan, it should be considered “appropriate action.” Because OSMRE only evaluates whether a State has shown “good cause” when the SRA fails to act on a TDN, actions it takes under an action plan should not be part of OSMRE's “good cause” determination.

Response: As explained above, OSMRE disagrees. Section 521(a)(1) provides that OSMRE should conduct a Federal inspection if the SRA “fails within ten days after notification to take appropriate action to cause said violation to be corrected or to show good cause for such failure.” 30 U.S.C. 1271(a)(1). While we agree with the commenter's overarching point that an action plan will cause the violation to be corrected, that correction did not happen during the ten days in which the SRA responded to OSMRE's TDN. Therefore, it is more consistent with SMCRA to consider action plans as “good cause” in response to a TDN.

Comment: One commenter requested clarification on whether, because of OSMRE not allowing action plans to be appropriate action in response to a TDN, a TDN will be considered an open, unresolved enforcement action until the action plan is completed.

Response: A TDN would remain open while an action plan is being used to resolve an underlying violation. Upon successful completion of the action plan, the SRA will be deemed to have taken appropriate action because the underlying violation will have been abated, and the TDN will be resolved. As noted above, the TDN is a communication mechanism and is not itself an enforcement action.

Comment: Some commenters supported the shortened time limits for how much additional time States may request to respond to a TDN. The commenters noted that this will be 30 days in most cases and 60 days in complex cases.

Response: Under this final rule, an SRA must continue to respond to a TDN within ten days. The time frames to which the commenters are referring apply to the good cause provisions under final 30 CFR 842.11(b)(1)(ii)(B)( 4 )( ii ) after a TDN is issued. Under that provision, good cause includes when “[t]he State regulatory authority has initiated an investigation into a possible violation and has determined that it requires an additional amount of time to determine whether a violation exists.” This additional amount of time may be days or weeks, which is obviously necessary sometimes to develop material to determine whether a violation does exist. As the commenter notes, under this final rule, the “State regulatory authority may request up to 30 additional days to complete its investigation of the issue; in complex situations, the State regulatory authority may request up to an additional 60 days to complete its investigation.” Further, “[t]he sum total of additional time for any one possible violation must not exceed 90 days.” Under the 2020 TDN Rule, the SRA's investigation could have been for a “reasonable, specified amount of time.” As that provision did not provide concrete time frames to ensure expeditious correction of violations, OSMRE concluded that it was appropriate to include the 30-day and 60-day time frames.

Comment: One commenter requested clarification that the revised action plan process will not be used as a justification for SRA failure to take appropriate action or to show good cause for such failure and requested that OSMRE take immediate inspection and enforcement action to correct on-the-ground violations resulting from programmatic failures.

Response: An action plan will not be used as a “justification for failure,” meaning an SRA cannot have an action plan ongoing indefinitely while the underlying violation remains uncorrected. All action plans will have defined timelines, stated objectives, and criteria defining success. This final rule sets concrete timelines on creation and completion of action plans ( see § 773.12(b)), which will ensure timely resolution of underlying violations. An SRA cannot claim action plan completion without addressing the underlying violation. Moreover, even when OSMRE and a State are pursuing an action plan, final § 733.12(d) allows an SRA to take direct enforcement actions and OSMRE to take appropriate oversight enforcement actions, as necessary. Further, under § 842.11(b)(1)(i), in imminent harm situations OSMRE will proceed directly to a Federal inspection, which ensures that these situations will be handled promptly.

Comment: One commenter stated that existing 30 CFR 842.11(b)(1)(iii)(B) should be rewritten to provide that a request for informal review by an SRA of OSMRE's determination that the SRA has failed to take appropriate action or to show good cause for such failure should not delay or prevent either a Federal inspection or issuance of an enforcement order for the violation.

Response: OSMRE did not propose to modify existing 30 CFR 842.11(b)(1)(iii)(A) regarding informal review afforded to SRAs. As such, that provision, along with § 842.11(b)(1)(iii)(B), is now beyond the scope of this rulemaking. OSMRE declines to make the requested change.

Summary of final rule revisions to 30 CFR 842.11(b)(2): As in the proposed rule, the final rule adds two new sentences to § 842.11(b)(2) specifying that: “All citizen complaints will be considered as requests for a Federal inspection under § 842.12. If the information supplied by the complainant results in a Federal inspection, the complainant will be offered the opportunity to accompany OSMRE on the Federal inspection.” These changes remove the requirement that a citizen specifically request a Federal inspection, which should eliminate any confusion regarding the processes associated with citizen complaints versus requests for Federal inspections. Additionally, and as previously discussed, this final rule also amends § 842.11(b)(2) by revising the information that OSMRE will consider when determining if OSMRE has reason to believe a violation exists. Finally, the final rule removes the existing language providing that OSMRE will have reason to believe a violation exists if facts known to OSMRE “constitute simple and effective documentation of the alleged violation . . . .” Instead, the final rule provides that OSMRE will have reason to believe that a violation exists if the facts “support the existence of a possible violation . . . .”

Comment: Some commenters supported the revisions that restore SMCRA's intent to treat all citizen complaints as requests for Federal inspection. These commenters also supported eliminating the requirement that a citizen first notify the SRA and then explain to OSMRE why the State's response was insufficient.

Response: OSMRE agrees. Treating all citizens complaints as requests for Federal inspections is consistent with SMCRA. OSMRE has revised the implementing regulatory language at §§ 842.11(b)(2) and 842.12(a) to reflect that. In addition, as explained in section I.B of this preamble, allowing citizens to contact OSMRE directly about a possible violation without an express requirement to contact the SRA is consistent with SMCRA and alleviates any tension or stress associated with a citizen contacting the SRA in situations where the citizen is not comfortable with doing so. As also discussed in section I.B of this preamble, OSMRE has explained why it eliminated the requirement at existing § 842.12(a) for a citizen to state the basis for their assertion that the SRA has not acted.

Comment: As explained in the discussion above, one commenter agreed that all citizen complaints should serve as requests for Federal inspections, even if inspections are not specifically requested.

Response: OSMRE appreciates this comment, and as explained elsewhere, has decided to finalize the corresponding regulatory provisions as proposed at §§ 842.11(b)(2) and 842.12(a). If a citizen complaint, whether or not it specifically requests a Federal inspection, gives OSMRE reason to believe there is imminent harm or a violation of SMCRA or the applicable State program that will be addressed through the TDN process, OSMRE could ultimately conduct a Federal inspection. Thus, OSMRE concludes that there is not a sufficient reason to keep the concepts separate in this final rule.

Comment: Some commenters asserted that all citizen complaints should not be considered as requests for a Federal inspection. These commenters were concerned that doing so could lead to a significant increase in the number of Federal inspections, which could drain State resources as SRAs often participate jointly with OSMRE in Federal inspections. These commenters would prefer that OSMRE maintain its discretion in deciding whether a citizen complainant is “truly requesting an inspection.” These commenters also noted that the last sentence of § 842.12(a) as revised states that “ [i]f the information supplied by the complainant results in a Federal inspection, the complainant will be offered the opportunity to accompany OSMRE on the Federal inspection.” These commenters indicated that the discretionary nature of “if” in that sentence appeared to contradict OSMRE's statements in the preamble to the proposed rule that all citizen complaints will be treated as requests for a Federal inspection.

Response: OSMRE disagrees and has concluded that it is appropriate to consider all citizen complaints as requests for a Federal inspection, even if the citizen does not specifically ask for a Federal inspection. If a citizen brings a possible violation to OSMRE's attention, it is logical to assume that the citizen would also want OSMRE to conduct any corresponding and necessary Federal inspection.

Contrary to the commenters' assertions, OSMRE does not believe that treating all citizen complaints as a request for a Federal inspection will significantly increase the overall number of Federal inspections performed. While OSMRE will treat all citizen complaints as a request for Federal inspection, OSMRE will still evaluate that citizen complaint under 30 CFR 842.11(b)(1) to determine if it has reason to believe a violation exists and, if so, issue a TDN to the State. In a primacy State, a Federal inspection will only be conducted if OSMRE determines that the State's response to a TDN was arbitrary, capricious, or an abuse of discretion. Because SRAs typically provide adequate responses to TDNs, we expect the number of Federal inspections to remain about the same as under the existing rule.

Furthermore, pursuant to this final rule, the Department requires a citizen complaint or request for Federal inspection to follow the process in § 842.11(b); as a result, OSMRE retains two points of discretion: when determining whether it has reason to believe a violation exists before issuing a TDN, and determining whether an SRA's TDN response is arbitrary, capricious, or an abuse of discretion. If OSMRE either decides that it does not have reason to believe a violation exists or that the State was not arbitrary and capricious in its response, OSMRE will not conduct a Federal inspection; therefore, the regulation correctly includes “if” in the last sentence.

Comment: One commenter noted that the proposed rule at § 842.12 states that citizen complaints under § 842.11(b) will be considered requests for a Federal inspection. The commenter noted further that, if the complaint results in a Federal inspection, the complainant will be offered the opportunity to accompany OSMRE on the inspection. The commenter asserted that the rule should be revised to clarify details about the communication mechanism to the citizen, the time frame for OSMRE's decision, OSMRE's notification to the SRA, and opportunity to accompany OSMRE on the inspection.

Response: The final rule does not change the communication mechanism between OSMRE and citizens related to participation on a Federal inspection, the time frames for OSMRE's decision to conduct a Federal inspection, or affording the SRA an opportunity to accompany OSMRE. Under the TDN process, if OSMRE determines that the State did not take appropriate action or show good cause for not doing so in response to a TDN, OSMRE will notify the SRA according to existing 30 CFR 842.11(b)(1)(iii)(A). In accordance with OSMRE's longstanding practice, the authorized representative may inform the SRA of a resulting Federal inspection. Likewise, if a Federal inspection occurs as a result of information provided by a citizen, OSMRE will notify and give the citizen the opportunity to accompany OSMRE on the inspection consistent with existing 30 CFR 842.12(c). If an imminent harm situation exists, there is no requirement for OSMRE to notify the State of a Federal inspection. If OSMRE determines a need exists in the future for more specificity in procedures for citizen involvement or SRA notification, OSMRE will propose such changes.

Comment: One commenter requested clarification of what constitutes an SRA response that is arbitrary, capricious, or an abuse of discretion and at what levels of OSMRE these decisions are made.

Response: Regarding the “arbitrary, capricious, or an abuse of discretion” portion of the comment, the Department adopted that standard of review in 1988. 53 FR at 26732. At that time, the Department opted not to adopt the same deference standards that Federal courts accord to the Secretary in developing regulations. Id. at 26733. Instead, the Department decided that such language was unnecessary and “[c]oncerns about future application of those words will best be decided when specific fact situations have arisen and can be evaluated.” Id. The Department did state that “OSMRE [will] defer to a state's interpretation of its own regulations, as long as that deference occurs within the framework of careful oversight, as provided by the statute. OSMRE will recognize a State's interpretation of its own program as long as it is not inconsistent with the terms of the program approval or any prior state interpretation recognized by the Secretary and as long as the state interpretation is not arbitrary, capricious, or an abuse of discretion.” Id. at 26732.

Regarding the levels at which OSMRE makes decisions such as when “reason to believe” exists or whether a TDN response is arbitrary, capricious, or an abuse of discretion: these decisions are made in accordance with OSMRE's internal management structure, but, generally, an OSMRE authorized representative, with the concurrence of the Field Office Director, makes the decision whether an SRA's response to a TDN does or does not meet the standards for appropriate action or good cause.

Comment: One commenter requested clarification as to whether the proposed rule is intended to limit Federal inspections to requests arising from citizen complaints.

Response: This final rule does not limit Federal oversight inspections to those that occur because of citizen complaints. In general, under existing § 842.11(a)(1), OSMRE conducts oversight inspections of surface coal mining and reclamation operations “as necessary . . . [t]o monitor and evaluate the administration of approved State programs.”

Comment: Similarly, one commenter sought clarification as to whether a citizen-requested Federal inspection would be counted toward the overall number of Federal oversight inspections agreed upon in the agencies' performance agreements.

Response: Under OSMRE's Directive REG-8 (Oversight of State and Tribal Regulatory Programs, https://www.osmre.gov/sites/default/files/pdfs/directive997.pdf ), when OSMRE conducts a Federal inspection because of a citizen complaint, that inspection will count toward OSMRE's target number of oversight inspections for the relevant State or Tribe for the applicable evaluation year. OSMRE will retain this approach under this final rule. However, if necessary, OSMRE can exceed the target number of oversight inspections in an evaluation year. As mentioned in response to the prior comment, under § 842.11(a)(1), OSMRE will conduct any Federal inspections that are necessary, regardless of the overall amount.

Summary of final rule revisions to 30 CFR 842.12(a): As in the proposed rule, the final rule changes § 842.12(a) so that any person may request a Federal inspection under § 842.11(b) by providing to an authorized representative a signed, written statement (or an oral report followed by a signed, written statement) setting forth information that, along with any other information the complainant chooses to provide, may give the authorized representative reason to believe that a violation, condition, or practice referred to in § 842.11(b)(1)(i) exists. Under the final rule, OSMRE will also consider “any other information the complainant chooses to provide.” In addition, OSMRE removed the phrase “readily available” and added that a reason to believe determination will be based upon information from a citizen complainant, information available in OSMRE files, and publicly available electronic information. Finally, OSMRE added new sentences to clarify that all citizen complaints under § 842.11(b) will be considered as requests for a Federal inspection, and that, if the information a citizen provides leads to a Federal inspection, the citizen will be afforded the opportunity to accompany OSMRE on the inspection.

Comment: One commenter opined that the term “violation” is used throughout SMCRA in the context of a permittee or operator.

Response: Although the meaning of this comment is unclear, as explained elsewhere, to the extent the commenter is suggesting that OSMRE should not send a TDN to an SRA for a permit defect, OSMRE disagrees with the comment. As explained above, OSMRE will issue a TDN whenever it has reason to believe that “any person” is in violation of SMCRA or the applicable State program, including not only permittees and operators, but also SRAs.

Comment: One commenter asserted that imposition of an opportunity for the SRA to seek informal review and OSMRE's completion of that review as a prerequisite to conducting a Federal inspection or issuing a Federal notice of violation following issuance of a TDN and a determination by OSMRE that the State did not take appropriate action (or show good cause for such failure) is nowhere provided for in SMCRA. The commenter also asserted that the provision has the effect of allowing extant violations to continue unabated, possibly ripening into avoidable imminent harm situations.

Response: For the reasons explained above, OSMRE declines to make any changes to the final rule based on this comment. Until OSMRE renders a decision on an SRA's request for informal review, OSMRE will be vigilant in monitoring the underlying situation and make every effort to ensure that an underlying violation does not reach the point of imminent harm.

Comment: Some commenters agreed with OSMRE that a citizen should not have to first notify the State when a citizen is requesting a Federal inspection.

Response: As mentioned previously in section I.B of this preamble and in response to other comments, when requesting a Federal inspection, this final rule removes the requirement at § 842.12(a) for a citizen to notify an SRA of a possible violation.

Comment: Some commenters supported continuation of the requirement for a complainant to contact the SRA before OSMRE.

Response: OSMRE explains above why it is removing the requirement for a citizen to notify the SRA when requesting a Federal inspection. The public will still be able to report possible violations directly to the SRA, and OSMRE encourages citizens to do so. The change in this final rule simply removes the requirement that a citizen notify the SRA prior to or simultaneously with OSMRE. As a general matter, OSMRE agrees with the commenters' reasoning that it is typically better for the SRA, which has primary jurisdiction, to address a citizen complaint because the SRA can address them promptly, “without the delay the ten day notice procedure necessarily involves.” However, without the regulatory change, if a citizen opted not to contact the SRA first for whatever reason, then under the 2020 TDN Rule, OSMRE could have refused to consider information received from any person— i.e., the citizen—to determine whether it had reason to believe a violation of SMCRA exists. After review, OSMRE determined that such an outcome would be contrary to SMCRA section 521(a)(1), which requires OSMRE to consider “any information available” from “any person” about the existence of a possible violation and does not require that that person notify the SRA first. Therefore, excluding the requirement for a citizen complainant to contact the SRA first hews more closely to the statutory requirements for public participation under 30 U.S.C. 1271(a)(1).

Comment: One commenter recommended that a citizen's failure to provide information for the basis of the person's assertion should not result in rejecting a citizen complaint.

Response: Under this final rule, as explained in section I.B of this preamble and as stated in the preamble to the proposed rule, a citizen need not state the basis for the assertion that the SRA has not acted with respect to a possible violation.

Comment: Some commenters asserted that OSMRE should not remove the requirement in the 2020 TDN Rule that a citizen provide a basis for their belief that the SRA failed to act. These commenters recognized that there was no mandate that this provision be included, but they stated that such information would be, at a minimum, useful for OSMRE to decide whether a possible violation exists. These commenters also contend that providing a simple explanation would not add a significant burden to the citizen complainant. Further, one commenter noted they are not aware of OSMRE not acting on a citizen complaint, even if the citizen did not provide such information.

Response: As the commenter recognizes, there is no language in SMCRA that requires OSMRE to mandate that a citizen provide a reason why they think the SRA failed to act. Therefore, as with removing the requirement that the SRA be notified first, discussed above, removing this requirement will remove barriers to public participation and make the final rule adhere more closely to the requirements of SMCRA section 521(a)(1). OSMRE does, however, recognize that it will consider all information provided by “any person” about the existence of a possible violation in determining whether it has reason to believe a violation exists. Thus, OSMRE encourages, but does not require, citizens to provide it with all pertinent information about the possible violation, which could include information about the SRA's prior response, if any.

Summary of final rule revisions to 30 CFR 733.5: The changes to 30 CFR 733.5 involve amending the definitions of “action plan” and “State regulatory program issue.” As explained in the preamble to the proposed rule (88 FR at 24957), the revisions to the “action plan” definition in this final rule are non-substantive clarifying changes that enhance its readability. OSMRE changed “a detailed schedule” to “a detailed plan,” but this change is not substantive because the revised definition also provides that an action plan “includes a schedule . . . .” Both the existing and new definitions require an action plan to lead to the resolution of a State regulatory program issue.

OSMRE also revised the definition of “State regulatory program issue.” The revisions are chiefly for clarity but also include substantive changes to the definition. Consistent with the discussions of permit defects in the preamble to this final rule, OSMRE changed “could result in” to “may result from” to indicate that a State regulatory program issue may result from a State regulatory authority's actions. In tandem with this change, the last sentence of the revised definition provides that “State regulatory program issues will be considered as possible violations and will initially proceed, and may be resolved, under part 842 of this chapter.” This language makes clear that an SRA's actions could constitute a possible violation for which OSMRE would issue a TDN. See discussions of permit defects above and at 88 FR at 24951-24952 and 24957.

Comment: See section III.E. (“Any Person” Who Can Be in Violation of SMCRA) for comment summary and response.

Summary of final rule revisions to 30 CFR 733.12(a): Without changing the meaning, the final rule removes “in order” before “to ensure” as it is unnecessary. In addition, the final rule changes “escalate into” to “become” to be more concise. In existing § 733.12(a)(1), the final rule adds “including a citizen complainant” at the end of the sentence to emphasize that a citizen complainant can be the source of information that leads OSMRE to identify a State regulatory program issue. In existing § 733.12(a)(2), the final rule adds “initiate procedures to” before “substitute Federal enforcement” and adds “in accordance with § 733.13” at the end of the sentence to replace “as provided in this part.” The changes to the last sentence indicate that there is an established process for substituting Federal enforcement or withdrawing approval of a State regulatory program.

Comment: See Section III.H (Minor Text Changes and Conforming Edits) for comment summary and response.

Summary of final rule revisions to 30 CFR 733.12(b): The final rule modifies existing § 733.12(b) to require OSMRE to develop and approve an action plan for a State regulatory program issue, along with a specific time frame for completing the identified actions. The final rule revises the first sentence of § 733.12(b) to read: “For each State regulatory program issue, the Director or their designee, in consultation with the State regulatory authority, will develop and approve an action plan within 60 days of identification of a State regulatory program issue.” Additionally, the final rule adds a new second sentence that would allow OSMRE and the relevant SRA to “identify [within 10 business days] interim remedial measures that may abate the existing condition or issue.” The final rule removes the existing language that allows OSMRE to “employ any number of compliance strategies” and replaces it with the requirement for OSMRE to develop and approve an action plan for all State regulatory program issues. In addition, the final rule removes the existing second sentence, which includes the requirement for OSMRE to develop and institute an action plan only if OSMRE does not expect the SRA to resolve the State regulatory program issue within 180 days after identification or that it is likely to result in a violation of the approved State program. Instead, the final rule includes a 60-day period for development and approval of an action plan for all State regulatory program issues. These changes also emphasize that State regulatory program issues will start as possible violations under 30 CFR part 842, which is consistent with the revised definition of State regulatory program issue at § 733.5. Finally, the revised provision includes the 10-day interim remedial measure language.

Comment: Some commenters supported the added language to § 733.12(b) that requires OSMRE to develop action plans in consultation with SRAs.

Response: OSMRE appreciates the support for this aspect of the rule. OSMRE recognizes that it is vitally important for an SRA to have input into an action plan that is developed to resolve a violation because the States primarily implement SMCRA on non-Federal, non-Indian lands within their borders, subject to OSMRE's oversight.

Comment: Some commenters asserted that action plan time frames are too short, especially if the SRA needs to develop regulations or seek legislative changes from the State legislature, which may have short legislative sessions, or if there is litigation that affects the resolution of the State regulatory program issue.

Response: OSMRE disagrees. OSMRE thoroughly considered these comments and concludes that the time frames in final § 733.12(b) are sufficient and appropriate for what the action plan requires. As explained in section I.B of this preamble, OSMRE, in general, does not expect that final resolution of an issue could exceed one year. See also 88 FR at 24950. Instead, when developing an action plan, OSMRE and the SRA must give careful consideration to objectives that can be completed within the specified time frame, such as proposing a State program amendment (rather than having a State program amendment approved).

Further, regarding the 10 days for interim measures, identification of these measures is not mandatory. The final regulatory language uses the phrase “ may identify interim measures that may abate the existing condition or issue.” (Emphasis added.) If 10 days is not sufficient or feasible, OSMRE and the SRA will not need to develop interim measures. The provision serves the purpose of highlighting and emphasizing the utility of identifying interim measures that may abate a violation as soon as possible. Even if these measures are not identified within 10 days, nothing prevents an SRA from later identifying such measures at any time to ameliorate or resolve an underlying violation or issue.

OSMRE also concludes that 60 days is adequate for development of an action plan, with the understanding that development and approval of an action plan does not mean that any of the requirements of the action plan need to be completed within 60 days.

Comment: One commenter noted that there is no provision for an SRA appeal of an OSMRE-developed action plan.

Response: Under this final rule, OSMRE contemplates that development of an action plan will be a joint effort between OSMRE and an SRA. However, under final § 773.12(b)(4), if the SRA does not cooperate in developing the action plan, OSMRE will develop, and require the State to comply with, the action plan. The Federal regulations provide that any written decision of the Director or their designee may be appealed to the Interior Board of Land Appeals if the decision specifically grants such an appeal. 43 CFR 4.1281. Thus, it will be up to the OSMRE Director or designated official to make a case-by-case determination if the action plan warrants IBLA appeal rights.

Comment: One commenter noted there are no OSMRE time frames required during its action plan development, and violations could remain unabated while OSMRE develops or considers an action plan.

Response: SMCRA does not have concrete time frames for OSMRE to determine whether it has reason to believe a violation exists. In like manner, this final rule does not create time frames for OSMRE to determine that there is a State regulatory program issue. However, the non-mandatory 10-day period for OSMRE and the SRA to develop interim measures in this final rule demonstrates OSMRE's commitment to addressing on-the-ground issues quickly even while the action plan is being developed. OSMRE will, of course, continue to monitor the underlying situation and make every effort to ensure that an underlying violation does not become an imminent harm if it is being addressed through an action plan.

Summary of final rule revisions to 30 CFR 733.12 (b)(1) through (4): In the first sentence of existing 30 CFR 733.12(b)(1), the final rule repeats the word “identify” before “an effective mechanism for timely correction” for clarity. This is a non-substantive change. The final rule also modifies § 733.12(b)(1) by adding a new second sentence that would require the SRA to “complete all identified actions contained within an action plan within 365 days from when OSMRE sends the action plan to the relevant State regulatory authority.” The 365-day requirement is discussed in section I.B of this preamble and in response to other comments in this section. OSMRE also finalized § 733.12(b)(2) as proposed by adding “upon approval of the action plan” to the end of the existing section. This change clarifies that an approved action plan will identify any remedial measures that an SRA must take immediately after the action plan is approved. Additional non-substantive changes to 30 CFR 733.12(b)(3) that were presented in the proposed rule are included in this final rule.

Finally, OSMRE introduced in the proposed rule a new § 733.12(b)(4) to enable OSMRE to develop and approve an action plan unilaterally if the SRA does not cooperate in a manner sufficient to develop such a plan. OSMRE would develop the action plan in accordance with the requirements of § 733.12(b)(1) through (3) and require the State to comply with the action plan. This will ensure timely resolution of violations. Further discussion of the changes to existing 30 CFR 733.12(b) can be found in the preamble to the proposed rule, 88 FR at 24958.

Comment: One commenter asserted that the proposed rule seeks to treat State regulatory program issues as potential violations and resolved under part 842 of this chapter, which aligns with SMCRA and should be finalized.

Response: As discussed, requiring OSMRE to issue TDNs for 30 CFR part 733 State regulatory program issues ( i.e., permit defects) more closely aligns with the text of SMCRA and congressional intent regarding TDNs. Consistent with the revised definition of State regulatory program issue at final § 733.5, OSMRE notes that State regulatory program issues will initially be considered as possible violations and will initially proceed, and may be resolved, under 30 CFR part 842. However, OSMRE also notes that while it will consider all possible violations initially under part 842, there may be instances when it makes more sense to handle certain possible violations solely through the part 733 action plan process rather than through the TDN process. Even in these instances, the new action plan time frames and requirements in § 733.12(b) will ensure that these situations do not take any longer than the TDN process, which will lead to timely resolution of underlying issues.

Comment: One commenter noted that the proposed rule acknowledged the need to address programmatic issues with SMCRA implementation by the State regulator through part 733, while also ensuring timely and direct enforcement of permit-related violations.

Response: OSMRE agrees with the commenter that the State regulatory authority is responsible for addressing violations and State regulatory program issues. As acknowledged by the commenter, SMCRA provides mechanisms to address violations and State regulatory program issues. SMCRA section 521(a), as implemented at 30 CFR 842.11, is intended to address all possible violations of SMCRA or a State regulatory program. SMCRA 521(b), as implemented at 30 CFR 733.12, is intended to address issues that arise from a State's implementation of its approved SMCRA program. In this final rule, all possible violations will initially be considered under 30 CFR part 842. Violations that indicate problems with SMCRA implementation may be addressed under the TDN process if the issue is limited in scope and can be successfully resolved within the confines of the TDN process. However, OSMRE believes most systemic issues will be addressed through a State regulatory authority program issue and addressed with a corrective action plan under 30 CFR 733.12.

Comment: One commenter stated that it is not clear how the revisions prevent duplication and confusion when OSMRE receives a citizen complaint related to a State regulatory program issue.

Response: When OSMRE receives a citizen complaint, OSMRE will review the information contained in the complaint, information in its files at the time the complaint is received, and publicly available electronic information to determine if OSMRE has reason to believe a violation exists. If OSMRE has reason to believe a violation exists, it will communicate this possible violation to the SRA via a TDN. There is no redundancy in this process. If the State is already aware of the issue, it can respond to the TDN that there is no violation of the State program, the State has taken appropriate action to abate the issue, the State is in the process of developing an abatement plan, or the State needs additional time to fully consider if the issue is a violation. And, short of an imminent harm scenario, OSMRE would only conduct a Federal inspection and take any corresponding enforcement action if the State does not respond in ten days or its response to the TDN is arbitrary, capricious, or an abuse of discretion.

Comment: Some commenters asserted that the State regulatory program issue process identified in the TDN rule will result in Federal assumption and/or control when a State regulatory program issue is identified.

Response: OSMRE disagrees with these commenters. The only way Federal assumption or control of a State program can occur is through the procedures at existing 30 CFR 733.13, which are not a subject of this final rule. Federal assumption of SMCRA jurisdiction cannot occur through the State regulatory program issue process outlined in this final rule at § 733.12. Issuing a TDN in the first instance for a State regulatory program issue and allowing a part 733 action plan to constitute “good cause” in response to the TDN is consistent with SMCRA and State primacy.

Comment: One commenter stated that the regulatory text demonstrating deference to States should be reflective of SMCRA regarding Federal inspections.

Response: As OSMRE understands the comment, the commenter claims that OSMRE should not intervene in SRA inspections. If OSMRE has reason to believe a violation exists, OSMRE will send a TDN to the SRA about the possible violation. OSMRE will conduct a Federal inspection only as directed in SMCRA and the implementing regulations at 30 CFR 842.11 if the SRA does not respond in ten days or its response to the TDN is arbitrary, capricious, or an abuse of its discretion. As previously noted, the arbitrary or capricious standard affords a high level of deference to an SRA, and it is fully consistent with SMCRA.

Summary of final rule revisions to 30 CFR 733.12(c): The final rule includes non-substantive and grammatical changes to existing § 733.12(c) for clarity. These revisions do not change the meaning of the provision.

Comment: See section III.H. (Minor Text Changes and Conforming Edits) for a general comment summary and response.

Summary of final rule revisions to 30 CFR 733.12(d): As in the proposed rule, in the final rule at § 733.12(d), OSMRE inserted the word “additional” before the phrase “appropriate oversight enforcement action” to indicate that any oversight enforcement action that OSMRE takes is in addition to an initial TDN or identification of a State regulatory program issue. The final rule ends the sentence there and deletes the last clause of the existing language. The revised provision reads: “Nothing in this section prevents a State regulatory authority from taking direct enforcement action in accordance with its State regulatory program or OSMRE from taking additional appropriate oversight enforcement action.” OSMRE deleted the remainder of the sentence because, as explained in section I.B of this preamble, under this final rule, it will no longer be the case that a possible violation could proceed initially as a State regulatory program issue that could subsequently transform into a possible violation that warrants the issuance of a TDN. Instead, under this final rule, OSMRE will consider all possible violations initially under 30 CFR part 842, which may result in the issuance of a TDN.

Comment: None.

The changes to the TDN and Federal inspection provisions at 30 CFR part 842 are intended to be severable from the 30 CFR part 733 provisions for State regulatory program issues and associated action plans. Thus, if any of the provisions of this final rule are stayed or invalidated by a reviewing court, the other provisions could operate independently and would be applicable to the relevant provisions of the existing regulations. For example, if a court were to invalidate any portion of the changes to part 842, the provisions at part 733 could still operate independently. Conversely, if a court were to invalidate any of the provisions at part 733, the provisions at part 842 could still operate independently. Likewise, changes to specific sections within these parts are intended to be severable from the changes to other sections.

This rule does not result in a taking of private property or otherwise have regulatory takings implications under Executive Order 12630. The rule primarily concerns Federal oversight of approved State programs and enforcement when permittees and operators are not complying with the law. Therefore, the rule will not result in private property being taken for public use without just compensation. A takings implication assessment is therefore not required.

Executive Order 12866, as amended by Executive Order 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant under Executive Order 12866, as amended.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, reduce uncertainty, and use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that agencies must base regulations on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. OSMRE has developed this final rule in a manner consistent with these requirements.

This rule complies with the requirements of Executive Order 12988. Among other things, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity; and be written to minimize litigation;

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

Under the criteria in section 1 of Executive Order 13132, this final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. While revising the existing regulations governing the TDN process would have a direct effect on the States and the Federal Government's relationship with the States, this effect would not be significant, as it would neither impose substantial unreimbursed compliance costs on States nor preempt State law. Furthermore, this final rule does not have a significant effect on the distribution of power and responsibilities among the various levels of government. The final rule would not significantly increase burdens on SRAs to address and resolve underlying issues. As such, a federalism summary impact statement is not required.

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and Tribal sovereignty. OSMRE has evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and determined that it does not have substantial direct effects on Federally recognized Tribes and that consultation under the Department's Tribal consultation policy is not required. Currently, no Tribes have achieved primacy. Thus, this rule will not impact the regulation of surface coal mining operations on Tribal lands. However, OSMRE coordinated with Tribes to inform them of the rulemaking. OSMRE coordinated with the Navajo Nation, Crow Tribe of Montana, Hopi Tribe of Arizona, Choctaw Nation of Oklahoma, Muscogee (Creek) Nation, and Cherokee Nation and did not receive comments or concerns. None of the Tribes requested consultation.

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

This final rule is not subject to Executive Order 13045 because it does not meet the criteria of Executive Order 12866 section 3(f)(1), as amended, and this action does not concern environmental health or safety risks disproportionately affecting children.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA), 15 U.S.C. 3701 et seq., directs Federal agencies to use voluntary consensus standards in their regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. OMB Circular A-119 at page 14. This final rule is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with SMCRA and is not applicable to this final rule.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., is not required because the rule is covered by a categorical exclusion. Specifically, OSMRE has determined that the final rule is administrative or procedural in nature in accordance with the Department of the Interior's NEPA regulations at 43 CFR 46.210(i). OSMRE has also determined that the final rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This rule does not impose any new information collection burden under the Paperwork Reduction Act. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 1029-0118. This rule does not impose an information collection burden because OSMRE is not making any changes to the information collection requirements. OSMRE estimates that the number of burden hours associated with TDN processing will stay the same as what is currently authorized by OMB control number 1029-0118.

OSMRE 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. ). OSMRE evaluated the impact of the regulatory changes and determined the rule changes would not induce, cause, or create any unnecessary burdens on the public, SRAs, or small businesses; would not discourage innovation or entrepreneurial enterprises; and would be consistent with SMCRA, from which the regulations draw their implementing authority.

The Congressional Review Act (5 U.S.C. 804(2)) requires certain procedures for “any rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in—

a. an annual effect on the economy of $100 million or more;

b. a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions;

c. significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

OIRA has determined that this rule does not meet those criteria.

This rule does not impose an unfunded mandate on State, local, or Tribal governments, or the private sector, of $100 million or more in any given year. The rule does not have a significant or unique effect on State, local, or Tribal governments, or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

The action taken herein is pursuant to an existing delegation of authority.

For the reasons set out in the preamble, the Department of the Interior, acting through OSMRE, amends 30 CFR parts 733 and 842 as follows:

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season apportionment of the 2024 Pacific cod TAC specified for vessels using jig gear in the BSAI is 1,169 metric tons (mt) as established by the final 2024 and 2025 harvest specifications for groundfish in the BSAI (89 FR 17287, March 11, 2024).

The 2024 Pacific cod TAC allocated to catcher vessels less than 60 feet (18.3 m) length overall (LOA) using hook-and-line or pot gear in the BSAI is 2,767 mt as established by final 2024 and 2025 harvest specifications for groundfish in the BSAI (89 FR 17287, March 11, 2024).

The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that jig vessels will not be able to harvest 1,100 mt of the A season apportionment of the 2024 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)( 1 ). Therefore, in accordance with § 679.20(a)(7)(iv)(C), NMFS apportions 1,100 mt of Pacific cod from the A season jig gear apportionment to the annual amount specified for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

The harvest specifications for 2024 Pacific cod included in final 2024 and 2025 harvest specifications for groundfish in the BSAI (89 FR 17287, March 11, 2024) are revised as follows: 69 mt to the A season apportionment and 848 mt to the annual amount for vessels using jig gear, and 3,867 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Pacific cod specified from jig vessels to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. NMFS was unable to publish a notification providing time for public comment because the most recent, relevant data only became available as of April 3, 2024.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.