[Federal Register Volume 59, Number 162 (Tuesday, August 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20514]


[[Page Unknown]]

[Federal Register: August 23, 1994]


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Part III





Department of the Interior





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Bureau of Indian Affairs



25 CFR Parts 200 and 216



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Office of Surface Mining Reclamation and Enforcement



30 CFR Part 710, et al.



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Surface Coal Mining and Reclamation Operations; Initial Regulatory 
Program for Indian Lands; Final Rule
DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Parts 200 and 216

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 710, 715, 716, 717, and 750

RIN 1029-AB65

 
Surface Coal Mining and Reclamation Operations; Initial 
Regulatory Program for Indian Lands

AGENCIES: Bureau of Indian Affairs and Office of Surface Mining 
Reclamation and Enforcement, Interior.

ACTION: Final rule.

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SUMMARY: The Bureau of Indian Affairs (BIA) and the Office of Surface 
Mining Reclamation and Enforcement (OSM) are amending their regulations 
to remove the current initial program for Indian lands and revise the 
existing initial program for non-Indian lands to apply to Indian lands. 
These amendments enable operators on Indian lands initial program 
sites, in appropriate circumstances, to reclaim to the latest technical 
and environmental standards of the permanent program, eliminate 
inconsistencies between the Indian and non-Indian lands initial 
programs, ensure equal treatment of operators on Indian and non-Indian 
lands, and clarify regulatory and compliance ambiguities. This rule 
also amends the permanent program for Indian lands to reflect the 
foregoing amendments and revises related information collection 
provisions.

EFFECTIVE DATE: September 22, 1994.

FOR FURTHER INFORMATION CONTACT:
Billie E. Clark, Jr., Branch of Federal and Indian Programs, Office of 
Surface Mining Reclamation and Enforcement, U.S. Department of the 
Interior, Brooks Towers, 1020 15th Street, Denver, CO 80202; Telephone: 
303-844-2829.

SUPPLEMENTARY INFORMATION:
    I. Background
    II. Discussion of Final Rule
    III. Response to Comments
    IV. Procedural Matters

I. Background

A. The Proposed Rule

    On March 22, 1993, the Bureau of Indian Affairs (BIA) and the 
Office of Surface Mining Reclamation and Enforcement (OSM) of the U.S. 
Department of the Interior published in the Federal Register at 58 FR 
15404 a proposed rule to remove the Indian lands initial program at 25 
CFR Part 216, Subpart B, and amend the non-Indian lands initial program 
at 30 CFR Chapter VII, Subchapter B, to cover Indian lands. OSM also 
proposed to make conforming revisions in the Indian lands permanent 
program and to revise related information collection provisions.
    In the notice, OSM and BIA stated that the proposed rule would, 
among other things:
    (1) Require operators on initial program Indian lands to adhere to 
the initial program performance standards at 30 CFR Chapter VII, 
Subchapter B;
    (2) Allow such operators to avail themselves of 30 CFR 710.11(e), 
under which they could choose to meet either the initial program 
performance standards at 30 CFR Chapter VII, Subchapter B, or 
counterpart permanent program performance standards at 30 CFR Chapter 
VII, Subchapter K;
    (3) Thereby allow such operators to reclaim to the latest technical 
and environmental standards of the permanent program; and
    (4) Eliminate inconsistencies between the Indian and non-Indian 
lands initial programs, ensure equal treatment of surface coal mine 
operators on Indian and non-Indian lands, and clarify regulatory and 
compliance ambiguities.
    The proposed rule provided a public comment period and offered to 
hold a public hearing. The public comment period closed on April 21, 
1993. Two requests for a public hearing were received but later 
withdrawn, and no hearing was held.

B. History of Affected Provisions

    The Surface Mining Control and Reclamation Act of 1977 (SMCRA or 
the Act), Pub. L. 95-87, as amended, 30 U.S.C. Secs. 1201-1328, 
provides for initial and permanent programs for the regulation by the 
Secretary of the Interior (the Secretary) of surface coal mining and 
reclamation operations on Indian lands. The Indian lands initial 
program is codified in the Federal regulations at 25 CFR Part 216, 
Subpart B (42 FR 63395, December 16, 1977 and 47 FR 13326, March 30, 
1982). The Indian lands permanent program is codified at 30 CFR Part 
750 (49 FR 38462, September 28, 1984). SMCRA also provides for initial 
and permanent programs for the regulation of surface coal mining and 
reclamation operations on non-Indian lands. The initial program for 
non-Indian lands is codified in the Federal regulations at 30 CFR 
Chapter VII, Subchapter B (42 FR 62639, December 13, 1977). Permanent 
program performance standards for non-Indian lands are codified at 30 
CFR Chapter VII, Subchapter K.
    As first promulgated, the performance standards of the Indian lands 
initial program at 25 CFR Part 216, Subpart B, were nearly identical to 
those of the non-Indian lands initial program at 30 CFR Parts 715 and 
716. However, there were differences. The most important difference was 
that the Indian lands initial program included provisions at 25 CFR 
216.112 through 216.114 for tribal involvement in inspection, 
enforcement, and civil penalty proceedings. Also, the Indian lands 
initial program did not include provisions, as found in the non-Indian 
lands initial program at 30 CFR 715.19, governing the use of 
explosives. Furthermore, except for the provisions governing steep-
slope mining at 25 CFR 216.111, the Indian lands initial program did 
not include special performance standards comparable to those for non-
Indian lands at 30 CFR Part 716.
    On September 28, 1984 (49 FR 38462), OSM published a rule that, 
among other things, amended the Indian lands initial program to remove 
the tribal involvement provisions at 25 CFR 216.112 through 216.114. In 
the preamble to that rule, OSM stated that those provisions were 
superseded by the permanent program provisions at 30 CFR Parts 842, 
843, and 845. Specific provisions to protect Indian interests were also 
included in 30 CFR Part 750. See e.g. 30 CFR 750.18. OSM determined 
that having one set of uniform rules made administration of the Act 
simpler and more efficient and that the change would cause no undue 
hardship on non-complying operators (49 FR 38464, September 28, 1984). 
Hence, the major reason for having separate Indian and non-Indian lands 
initial programs was eliminated.
    On February 14, 1991 (56 FR 6224), OSM amended the non-Indian lands 
initial program to add a new provision--namely, 30 CFR 710.11(e)--that 
allows operators on non-Indian lands to meet any counterpart permanent 
program performance standard at 30 CFR Chapter VII, Subchapter K, in 
lieu of the initial program performance standard at 30 CFR Chapter VII, 
Subchapter B. Changes to the Indian lands initial program were deemed 
to be outside the scope of that rulemaking (56 FR 6224, 6226, February 
14, 1991). Thus, while operators of non-Indian lands had the option to 
meet counterpart permanent program standards in lieu of initial program 
standards, operators on Indian lands did not have that option.
    Although 30 CFR 710.11(e) did not apply to initial program Indian 
lands, the basis and purpose for the promulgation of that provision are 
applicable to Indian lands. In explaining that new provision (56 FR 
6224, February 14, 1991), OSM stated:
    The Permanent Program rules [require] the latest technical and 
environmental standards for interpretation of the Act and are the 
result of more than ten years of experience in implementing the Act. 
They include many program revisions mandated by courts. However, in 
cases where the Initial Program performance standards continue to 
apply, Regulatory Authorities must require operators to comply with all 
of the earlier standards, even when compliance with Permanent Program 
standards would ensure implementation of [the Act] or would result in 
reclamation superior to that which would be achieved under the Initial 
Program standards.
    OSM then described five examples of initial program performance 
standards that were outdated or for which compliance was impractical. 
Most of those examples are equally germane to Indian lands.
    The Indian lands initial program applies to any person who conducts 
surface coal mining and reclamation operations on Indian lands on or 
after December 16, 1977. Although the Indian lands permanent program 
has been in effect since September 28, 1984, operators on all initial 
program sites must continue to comply with the Indian lands initial 
program performance standards, even though compliance with counterpart 
permanent program performance standards would ensure implementation of 
the Act and could result in superior reclamation. At the present time, 
there is only one interim program mine in operation on Indian lands. 
Interim program sites include sites at which surface coal mining 
operations were complete prior to June 28, 1985 (eight months following 
the effective date of the Indian lands permanent program) and to 
surface coal mining operations operating under an interim authorization 
pending issuance of a permanent program permit (See 30 CFR 750.11(c)). 
This rulemaking affects only such sites.

II. Discussion of Final Rule

    This rule moves the Indian lands initial program regulations at 25 
CFR Part 216.100(b), into a new section, but would not change its 
substance. Part 216, Subpart B would be deleted as proposed. The rule 
also amends the permanent program for Indian lands at 30 CFR 750.16 to 
reflect the foregoing changes. The rule also amends the information 
collection statements at 30 CFR 716.10, 717.10, and 750.10.
    These amendments, among other things, allow operators on Indian 
lands initial program sites to avail themselves of the provisions of 30 
CFR 710.11(e), under which operators may choose to meet either the 
initial program performance standards at 30 CFR Chapter VII, Subchapter 
B, or counterpart permanent program performance standards at 30 CFR 
Chapter VII, Subchapter K.

Removal of 25 CFR Part 216, Subpart B

    25 CFR section 216.100(b) provides that the requirements of 25 CFR 
part 216, Subpart B shall be incorporated in all existing and new 
contracts entered into for coal mining on Indian lands. Although OSM 
proposed to delete 25 CFR Part 216, Subpart B, OSM has decided to 
retain the contents of section 216.100(b) by redesignating the section 
as section 200.12 Contract Term Incorporation, and making a technical 
revision to reflect the fact that the requirements of Subpart B have 
been replaced by 30 CFR Part 750. This change reflects the fact that 
the requirement of 25 CFR section 216.100(b) would not be addressed by 
the amendments to 30 CFR Chapter VII. Accordingly, the existing 
requirement of 25 CFR section 216.100(b) is being redesignated without 
substantive change.
    As discussed above, prior to this rule 25 CFR Part 216, Subpart B, 
comprised the Indian lands initial program. Although 25 CFR Part 216, 
Subpart B, appears in the BIA regulations at 25 CFR Chapter I, the OSM 
Director is responsible for administering the Indian lands initial 
program under the general guidance of the Assistant Secretary for Land 
and Minerals Management.
    The performance standards of 30 CFR Chapter VII, Subchapter B, do 
not place any additional unreasonable burdens on operators on Indian 
lands initial program sites about and beyond those found in 25 CFR Part 
216, Subpart B. The changes will actually give OSM and operators more 
flexibility while ensuring compliance with the Act.

Amendments to 30 CFR

    As discussed below, the amendments to 30 CFR 710.11(b), 715.11, and 
750.16 make the non-Indian lands initial program at 30 CFR Chapter VII, 
Subchapter B, applicable to Indian lands.

Section 710.11(b)--Applicability

    The ``Applicability'' provisions at 30 CFR 710.11(b) are amended to 
make the initial program regulations at 30 CFR Chapter VII, Subchapter 
B, applicable to Indian lands. Specifically, it requires any person who 
conducts surface coal mining and reclamation operations on Indian lands 
on or after December 16, 1977, in accordance with 30 CFR 750.11(c), to 
meet the performance standards of 30 CFR Chapter VII, Subchapter B. 
This change would, by implication, amend any provision of 30 CFR 
Chapter VII, Subchapter B, containing a reference to the State as the 
regulatory authority, to the extent that such reference would be 
construed as also referring to OSM as the regulatory authority on 
Indian lands.
    This change affects operators on Indian lands initial program sites 
in three principal ways:

a. Permanent Program Performance Standards in Lieu of Initial Program 
Performance Standards

    The change to 30 CFR 710.11(b) allows operators on Indian lands 
initial program sites to avail themselves of the provisions of 30 CFR 
710.11(e), under which they may choose to meet either the initial 
program performance standards at 30 CFR Chapter VII, Subchapter B, or 
counterpart permanent program performance standards at 30 CFR Chapter 
VII, Subchapter K. Prior to this rulemaking, operators on non-Indian 
lands were able to avail themselves of section 710.11(e) while 
operators on Indian lands were not. With this rulemaking, operators on 
Indian lands may now avail themselves of section 710.11(e). This 
resolves an inequity. Without the change to section 710.11(b), 
operators on Indian lands initial program sites could be placed at a 
competitive and economic disadvantage when compared with operators on 
non-Indian land, because of performance standards that have been 
determined to be unnecessary for implementation of SMCRA. Thus, the 
change to section 710.11(b) eliminates inconsistencies between the 
current Indian and non-Indian lands initial programs and ensures equal 
treatment of operators on Indian and non-Indian lands.
    This rulemaking will have no cumulative negative environmental 
effect. Allowing operators to choose compliance with the permanent 
program performance standards will ensure compliance with the Act. The 
permanent program performance standards represent the latest technical 
and environmental standards for interpretation of the Act, and are the 
result of more than fifteen years of experience in implementing the 
Act. The permanent program performance standards also include revisions 
mandated by courts. Hence, the Act will be complied with and 
environmental impacts will be fully analyzed and considered before 
final decisions are reached.

b. Frequency of Inspecting Ponds That Do Not Meet Mine Safety and 
Health Administration Criteria

    The Indian lands initial program at 25 CFR 216.108(e) required that 
ponds not meeting the size or other criteria of the Mine Safety and 
Health Administration regulation at 30 CFR 77.216(a) be examined on a 
weekly basis. In comparison, the non-Indian lands initial program at 30 
CFR 715.17(e)(20) allows the regulatory authority to approve a 
reduction in the number of examinations of these ponds to four times 
per year. The change to 30 CFR 710.11(b) makes 30 CFR 715.17(e)(20) 
applicable to Indian lands and, consequently, allows OSM, the 
regulatory authority for Indian lands, to approve a reduction in the 
number of examinations of these ponds to four times per year. This 
change eliminates a competitive and economic disadvantage placed on 
Indian land operators by reducing the cost to the operator associated 
with such examinations.

c. Use of Explosives

    Section 710(c) of the Act does not specifically require operators 
on Indian lands initial program sites to comply with subsection 
515(b)(15) of the Act concerning the use of explosives. Therefore, the 
Indian lands initial program promulgated on December 16, 1977 (42 FR 
63395) did not include provisions governing the use of explosives. In 
comparison, section 502(c) of the Act requires operators on non-Indian 
lands initial program sites to comply with subsection 515(b)(15) of the 
Act. Consequently, the non-Indian lands initial program at 30 CFR 
715.19 includes provisions governing the use of explosives.
    By this rulemaking, 30 CFR 710.11(b) is modified and the provisions 
at 30 CFR 715.19 governing the use of explosives are made applicable to 
Indian lands initial program sites. Section 710(d) of the Act, however, 
requires surface coal mine operators on Indian lands, on which such 
operations are conducted on and after thirty months from August 3, 
1977, to comply with all of subsection 515 of the Act, including 
subsection 515(b)(15). Furthermore, section 710(d) of the Act requires 
that after the applicable thirty month period, all of the requirements 
of subsection 515 of the Act must be incorporated in existing and new 
leases issued for coal on Indian lands. The changes to 30 CFR 710.11(b) 
in this rulemaking are effective after the applicable 30-month period 
when operators on Indian lands must comply with all of the requirements 
of section 515 of the Act, including those concerning explosives. 
Therefore, 30 CFR 715.19 is made applicable to Indian lands.

Section 715.11--General Obligations

    Part 715 of 30 CFR contains general initial program performance 
standards and includes regulations governing restoration of disturbed 
areas to suitable postmining land use, backfilling and grading, off-
site disposal of spoil and waste materials, topsoil handling, 
protection of the hydrologic system, construction, inspection, and 
maintenance of dams, use of explosives, and revegetation. The focus of 
30 CFR Part 715 is on lands regulated by the States. The ``General 
obligations'' section of this part is modified by adding a new 
paragraph to clarify that the general performance standards of this 
part are also applicable to Indian lands. Specifically, paragraph (d) 
is added to 30 CFR 715.11. OSM had proposed to add a new subparagraph 
30 CFR 715.11(d)(1) which specifically clarified that OSM is the 
regulatory authority for surface coal mining and reclamation operations 
conducted on Indian lands initial program sites. This has been OSM's 
position for a number of years (See, e.g., OSM's preambles on September 
28, 1984, and May 22, 1989 (54 FR 22182).). OSM has decided not to 
include this provision in the final rule because it is not necessary. 
Although such a clarification would have been useful when this program 
was codified in 25 CFR, such a clarification is unnecessary once the 
program is codified under 30 CFR, because the provisions of 30 CFR 
already define ``regulatory authority'' and specify what entities 
perform that role. Thus, the decision not to adopt this provision is 
not intended to be a substantive change from the existing rule or from 
the proposed rule. The issue of who may act as the regulatory authority 
under SMCRA on Indian lands is currently the subject of litigation 
[Hopi Indian Tribe v. Secretary of the Interior, No. 89-2055-JGP 
(D.D.C.); Navajo Nation v. Babbitt, No. 89-2066-JGP (D.D.C.) 
(consolidated)]. OSM anticipates the issue will be resolved in the 
context of that litigation.
    OSM proposed a new subparagraph 30 CFR 715.11(d)(2). This provision 
is being renumbered and adopted. 30 CFR 715.11(d)(1). This subparagraph 
establishes minimum requirements for mine maps. The maps must show as 
of December 16, 1977, the lands where coal had not yet been removed, 
and the lands and structures that had been used or disturbed by a 
surface coal mining operation. This provision essentially duplicates 25 
CFR 216.102(b). This is necessary since the effective date of the 
initial program for Indian lands is December 16, 1977, as opposed to 
May 3, 1978, for non-Indian lands, and operators still must supply the 
subject mine maps to OSM.
    Subpart B of 25 CFR Part 216 generally requires coordination and 
consultation with tribes, much the same as 30 CFR Part 715 requires 
coordination and consultation with States and local governments. Since 
Subpart B of 25 CFR Part 216 is removed under this rulemaking, OSM 
proposed to add a provision at 30 CFR 715.11(d)(3) that requires 
notification of and consultation with tribal governments to the same 
extent as is required for State and local governments. The provision is 
being renumbered and adopted as 30 CFR 715.11(d). This provision 
reflects the important role of tribal governments in the initial 
program for Indian lands.
    The last sentence of 30 CFR 715.11(d)(2) requires OSM to coordinate 
with the BIA with respect to special requirements relating to the 
protection of noncoal resources and the Bureau of Land Management (BLM) 
with respect to the requirements relating to the development, 
production and recovery of mineral resources. This sentence has been 
added to the final rulemaking to specifically recognize the 
responsibilities that the BIA and the BLM have on Indian lands. It 
essentially establishes the same requirement for the initial program as 
exists in 30 CFR 750.6 for the permanent program.

Sections 716.1 Through 716.10--Special Performance Standards

    30 CFR Chapter VII, Subchapter B, includes provisions governing 
general obligations (section 716.1), steep-slope mining (section 
716.2), mountain-top removal (section 716.3), special bituminous coal 
mines (section 716.4), anthracite coal mines (section 716.5), coal 
mines in Alaska (section 716.6), prime farmland (section 716.7), and 
information collection (section 716.10). The only counterpart to these 
regulations under 25 CFR Part 216, Subpart B, was the regulations 
governing steep-slope mining (section 216.111), which duplicates only a 
portion of the regulations covering steep-slope mining at 30 CFR 716.2. 
Under the changes made today, the additional requirements of 30 CFR 
Chapter VII, Subchapter B, also govern operations on Indian lands 
initial program sites, as applicable.

Section 750.16--Performance Standards

    30 CFR 750.16 is modified to reflect that operators on Indian lands 
initial program site must comply with the provisions of 30 CFR Chapter 
VII, Subchapter B. This is necessary since 25 CFR Part 216, Subpart B 
is removed by this rulemaking.

III. Response to Comments

    Comments on the proposed rule were received from four entities: two 
tribal governments and two members of the coal industry. The proposal 
to allow operators to meet counterpart permanent program performance 
standards in lieu of meeting initial program standards was generally 
supported by all of the commenters. One commenter said that it favored 
the proposed rule since the rule would place operators on Indian lands 
on the same footing as operators on non-Indian lands. However, some 
commenters suggested that the final rule be modified to reflect 
specific concerns. Responses to comments on specific issues follow.

A. Combining Initial and Permanent Program Performance Standards

    As provided in 30 CFR 710.11(e), for surface coal mining and 
reclamation operations on Indian lands initial program sites this rule 
allows operators to meet either the initial or the counterpart 
permanent program performance standards. One commenter asked whether an 
operator on Indian lands initial program sites could, for a performance 
standard applicable to a specific activity, meet part of the initial 
program performance standard and, for the remainder of that standard, 
meet the permanent program performance standard.
    For example, under this rule, Indian lands initial program 
operations would be subject to the initial program performance standard 
at 30 CFR 715.19 governing the use of explosives. The counterpart 
permanent program performance standard is found at 30 CFR 816.61 
through 816.68. The requirements of that portion of the initial program 
standard at 30 CFR 715.19(c) (1) and (2) are different than the 
counterpart requirements at 30 CFR 816.64(c) (2) and (3) about what an 
operator must identify in a blasting schedule. The commenter asked 
whether an operator could meet the permanent program requirements for 
those two subsections but meet the initial program requirements for the 
remainder of the performance standard.
    The answer is no. While 30 CFR 710.11(e) allows an operator to meet 
either the initial or the counterpart permanent program performance 
standard, the operator may not pick and choose selective portions of a 
comprehensive standard applicable to a particular activity. In the 
commenter's example, 30 CFR 715.19 contains a comprehensive performance 
standard governing the use of explosives. Consequently, under 30 CFR 
710.11(e), an operator could choose to meet all of the initial program 
performance standard at section 715.19 or, in the alternative, all of 
the permanent program performance standard governing the use of 
explosives at 30 CFR 816.61 through 816.68.
    The approach suggested by the commenter would be impracticable to 
administer and could result in incomplete compliance with the minimum 
requirements of both the initial and permanent program performance 
standards. Each operator who elects to meet a permanent program 
performance standard in lieu of an initial program standard, is 
responsible for initially determining the extent of the counterpart 
initial and permanent program standards. OSM will in all cases have the 
final say regarding the validity of that determination.

B. Effect of Rule on Previously Approved Activities

    One commenter was concerned that this rule would necessitate 
additional review and approval of activities that previously were 
approved under 25 CFR Part 216, Subpart B. The commenter's concern is 
unfounded. This rule does not negate any previous approvals given by 
OSM under the initial program.
    One commenter suggested that this rulemaking will lower standards 
on initial program sites, since some of the permanent program 
performance standards are less stringent than the initial program 
performance standards. The commenter stated that the rule change 
appears to be only for the convenience of the operators and that alone 
is not a sufficient reason to lower the standards. Recognizing that 
both programs meet the requirements of the Act, the commenter was also 
concerned that the rulemaking may result in a cumulative negative 
effect on tribal lands. The commenter requested that the rule be 
modified to require OSM to make a finding that compliance with the 
permanent program performance standards, as opposed to the initial 
program performance standards, will have no negative effect and/or will 
not negatively impact the overall environment.
    OSM disagrees. This rulemaking is expected to have no cumulative 
negative effect on tribal lands, for several reasons. Allowing 
operators to choose compliance with the permanent program performance 
standards will not be a problem because such compliance would 
constitute full compliance with the Act. The permanent program 
performance standards represent the latest technical and environmental 
standards for interpretation of the Act, and are the result of more 
than fifteen years of experience in implementing the Act. The permanent 
program performance standards also include revisions mandated by 
courts. Operators opting to meet the permanent program standards would 
be meeting requirements that satisfy the Act. OSM's approval would be 
required if on an initial program site an operator wished to initiate 
under permanent program standards an activity that under the initial 
program requires regulatory authority approval, or if the operator 
wishes to apply permanent program standards to an activity approved 
under the initial program; and OSM would be required to ensure 
compliance with the Act and the National Environmental Policy Act of 
1969 (NEPA). Hence, the Act will be complied with and environmental 
impacts will be fully analyzed and considered before a final decision 
is reached.

C. OSM Coordination With Other Agencies

    One commenter opposed allowing operators the right to choose 
permanent program performance standards over initial program 
performance standards without a tribe being given the opportunity to 
comment on and/or oppose such action. The commenter stated that the 
government must support the Federal policy of self-determination for 
tribes. Therefore, a tribe should be consulted and informed of any and 
all consequences of operators choosing initial program performance 
standards over permanent program performance standards. The commenter 
also stated that the tribes were not being treated as an equal to the 
States. A State, as the regulatory authority under the Act, can choose 
not to adopt this rule change in its program but a tribe, since OSM is 
the regulatory authority under the Act, does not have this same option. 
In addition, a State could adopt a more restrictive rule that would 
require operators to follow notice and consultation procedures before 
using a permanent program performance standards on an initial program 
site. Hence, the commenter requested that the rule provide notice and 
consultation with tribes and that the operator on Indian lands initial 
program sites obtain prior approval from the tribes before using a 
permanent program performance standard in lieu of an initial program 
performance standard.
    OSM agrees that the tribes will not be able to act as State 
regulatory authorities may. This is consistent with SMCRA section 710, 
under which OSM is the regulatory authority for Indian lands. Under 
section 710, tribes are not authorized to act as the regulatory 
authority on Indian lands, so tribes may not take the same actions as 
may be taken by State regulatory authorities under State primacy.
    However, OSM disagrees with the commenter's concerns about 
consultation with tribes. As noted above, if an operator on an Indian 
lands initial program site chooses to utilize a permanent program 
performance standard in lieu of an initial program performance 
standard, and prior approval is required under the initial program for 
the activity or the operator is proposing modification of a previously 
approved activity, then the operator must obtain prior approval from 
OSM prior to conducting such activity. Prior to OSM taking action, 
tribes as well as other agencies will be consulted with as provided for 
under this final rule at 30 CFR 715.11(d)(2). Thus, the final rule 
requires appropriate consultation with tribes.
    One commenter suggested that 30 CFR 750.6(a)(3) be amended to give 
tribal authorities the option of participating in inspections conducted 
by OSM in order to assist the tribes in their development of regulatory 
expertise and to prepare the tribes to assume enforcement authority 
once appropriate legislation is enacted.
    In response to this comment, OSM states that the development of 
tribal regulatory expertise is beyond the scope of this rulemaking. 
However, it should be noted that as a routine practice OSM invites 
tribal and other agency officials to accompany inspectors during all 
Indian mine inspections.
    One commenter requested that OSM consult directly with the tribal 
governments instead of going through the BIA. The commenter suggested 
that 30 CFR 750.6(d) be modified to reflect this request. The same 
commenter stated that tribal governments should be consulted in the 
same manner as State regulatory agencies, whether or not the tribes 
have their own regulatory programs under SMCRA.
    In response to this comment, OSM states that modifying coordination 
procedures for the permanent program is beyond the scope of this 
rulemaking. However, it should be recognized that OSM consults directly 
with tribal governments concerning permanent program matters as 
required at 30 CFR 750.6(a)(4). In order to ensure that tribal concerns 
are fully addressed OSM consults with tribal governments on all 
permitting actions.

D. Tribal and State Laws

    One commenter stated that tribes may undertake their own regulatory 
program, independent of SMCRA. The same commenter proposed that 30 CFR 
715.11(a) be amended to require compliance with tribal laws and 
regulations for coal mining operations on Indian lands and that the 
provisions of 30 CFR Part 715 that refer to State and local agencies be 
amended to include tribal agencies. The commenter further requested 
that the rules reflect that if there is a conflict between State or 
local laws and tribal laws, with regard to surface coal mining and 
reclamation operations on Indian lands, that tribal law should control.
    In response to this comment, OSM notes that this rulemaking neither 
addresses the laws and regulatory programs that tribal governments have 
enacted, or may enact, nor the conflicts which may exist between tribal 
laws and State and local laws over the regulation of surface coal 
mining operations on Indian lands and would not affect the 
applicability of such tribal laws and regulations. Hence, the concerns 
raised by the commenter are beyond the scope of this rulemaking. The 
Tribes have raised this issue in the case of Hopi Indian Tribe v. 
Secretary of the Interior, supra, and it may be addressed in that 
proceeding.

IV. Procedural Matters

Federal Paperwork Reduction Act

    This rule does not contain collections of information which require 
approval by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq.

Executive Order 12866, Regulatory Planning and Review

    This rule was not subject to Office of Management and Budget Review 
under Executive Order 12866.

Regulatory Flexibility Act

    The U.S. Department of the Interior (DOI) certifies that this 
document would not have a significant economic effect on a substantial 
number of small entities under the Regulatory Flexibility Act, 5 U.S.C. 
601 et seq. This determination is based on the fact the rule would 
permit an operator to comply with either initial program rules or 
permanent program rules. All seven existing mines on Indian lands in 
the states of Arizona, New Mexico, and Montana would be affected.

Executive Order 12778, Civil Justice Reform

    This rule has been reviewed under the applicable standards of 
Section 2(b)(2) of Executive Order 12778, Civil Justice Reform (56 FR 
55195). In general, the requirements of Section 2(b)(2) of Executive 
Order 12778 are covered by the preamble discussion of this rule. 
Additional remarks follow concerning individual elements of the 
Executive Order:
    A. What is the preemptive effect, if any, to be given to the 
regulation?
    The rule will have no preemptive effect, since it merely 
substitutes one set of Federal standards for another set, and no State 
performance standards or other requirements apply.
    B. What is the effect on existing Federal law or regulation, if 
any, including all provisions repealed or modified?
    This rule modifies the implementation of SMCRA as described herein, 
and is not intended to modify the implementation of any other Federal 
statute. The preceding discussion of this rule specifies the Federal 
regulatory provisions that are affected by this rule.
    C. Does the rule provide a clear and certain legal standard for 
affected conduct rather than a general standard, while promoting 
simplification and burden reduction?
    The standards established by this rule are as clear and certain as 
practicable, given the complexity of the topics covered and the 
mandates of SMCRA. As noted above, the rule will simplify the 
regulatory process by establishing one set of initial program 
regulatory provisions for all surface coal mining operations. The rule 
would also allow surface coal mining operations to choose to comply 
with permanent program standards which are in some cases less stringent 
than initial program standards, where OSM has determined that less 
stringent permanent program standards fully ensure compliance with 
SMCRA.
    D. What is the retroactive effective, if any, to be given to the 
regulation?
    This rule is not intended to have retroactive effect.
    E. Are administrative proceedings required before parties may file 
suit in court? Which proceedings apply? Is the exhaustion of 
administrative remedies required?
    No administrative proceedings are required before parties may file 
suit in court challenging the provisions of this rule under section 
526(a) of SMCRA, 30 U.S.C. 1276(a).
    Prior to any judicial challenge to the application of the rule, 
however, administrative procedures must be exhausted. Applicable 
administrative procedures may be found at 43 CFR Part 4.
    F. Does the rule define key terms, either explicitly or by 
reference to other regulations or statutes that explicitly define those 
items?
    Terms which are important to the understanding of this rule are set 
forth in 30 CFR 700.5, 701.5 and 750.5.
    G. Does the rule address other important issues affecting clarity 
and general draftsmanship of regulations set forth by the Attorney 
General, with the concurrence of the Director of the Office of 
Management and Budget, that are determined to be in accordance with the 
purposes of the Executive Order?
    The Attorney General and the Director of the Office of Management 
and Budget have not issued any guidance on this requirement.

National Environmental Policy Act

    OSM has prepared a final environmental assessment (EA), and has 
made a finding that the proposed rule would not significantly affect 
the quality of the human environment under section 102(2)(C) of the 
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). 
A finding of no significant impact (FONSI) has been approved in 
accordance with OSM procedures under NEPA. The EA is on file in the OSM 
Administrative Record at the address specified previously (see 
ADDRESSES).

Authors

    The principal authors of this proposed rule are Billie E. Clark, 
Federal and Indian Permitting Branch, Office of Surface Mining 
Reclamation and Enforcement, Denver, Colorado, and John S. Retrum, 
Office of the Field Solicitor, U.S. Department of the Interior, Denver, 
Colorado. Telephone: 303-844-2829 and 303-231-5350, respectively.

List of Subjects

25 CFR Part 200

    Environmental protection, Indian lands, Mineral resources, Mines.

25 CFR Part 216

    Environmental protection, Indian lands, Mineral resources, Mines.

30 CFR Part 710

    Law enforcement, Public health, Reporting and recordkeeping 
requirements, Safety, Surface mining, Underground mining.

30 CFR Part 715

    Environmental protection, Reporting and recordkeeping requirements, 
Surface mining, Underground mining.

30 CFR Part 716

    Special performance standards, Steep-slope mining, Mountaintop 
removal, Bituminous coal mines, Prime farmlands.

30 CFR Part 717

    Environmental protection, Reporting and recordkeeping requirements, 
Underground mining.

30 CFR Part 750

    Indian lands, Intergovernmental relations, Reporting and 
recordkeeping requirements, Surface mining, Underground mining.

    Dated: July 18, 1994.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.

    August 5, 1994.
Ada E. Deer,
Assistant Secretary, Indian Affairs.

    Accordingly, 25 CFR parts 200 and 216 and 30 CFR parts 710, 715, 
716, 717, and 750 are amended as set forth below:

25 CFR CHAPTER I

PART 200--TERMS AND CONDITIONS: COAL LEASES

    1. The authority citation for Part 200 continues to read as 
follows:

    Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.), as amended.

    2. Section 200.12 is added to read as follows:


Sec. 200.12  Contract term incorporation.

    The requirements of 30 CFR Part 750 shall be incorporated in all 
existing and new contracts entered into for coal mining on Indian 
lands.

PART 216--SURFACE EXPLORATION, MINING, AND RECLAMATION OF LANDS

    3. The authority citation for Part 216 continues to read as 
follows:

    Authority: 34 Stat. 539, 35 Stat. 312; 25 U.S.C. 355 NT; 35 
Stat. 781; 25 U.S.C. 396; sec. 1, 49 Stat. 1250; 25 U.S.C. 473a; 49 
Stat. 1967, 25 U.S.C. 501, 502; 52 Stat. 347, 25 U.S.C. 396 a-f; 5 
U.S.C. 301.

Subpart B--[Removed]

    4. Subpart B--Coal Operations, consisting of Secs. 216.100-216.111, 
is removed in its entirety.

30 CFR CHAPTER VII

PART 710--INITIAL REGULATORY PROGRAM

    5. The authority citation for Part 710 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq., as amended, and Pub. L. 100-
34.

    6. In Sec. 710.11, paragraph (b) is revised to read as follows:


Sec. 710.11  Applicability.

* * * * *
    (b) Operations on Indian lands. Any person who conducts surface 
coal mining and reclamation operations on Indian lands on or after 
December 16, 1977, in accordance with section 750.11(c) of this 
chapter, or who was otherwise subject to 25 CFR Part 216, Subpart B 
prior to September 22, 1994; shall comply with the performance 
standards of this subchapter.
* * * * *

PART 715--GENERAL PERFORMANCE STANDARDS

    7. The authority citation for Part 715 continues to read as 
follows:

    Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.).

    8. In Sec. 715.11, paragraph (d) is added to read as follows:


Sec. 715.11  General obligations.

* * * * *
    (d) Indian lands. (1) Mine maps. Any person conducting surface coal 
mining and reclamation operations on Indian lands under this part shall 
submit no fewer than 7 copies of an accurate map of the mine and 
authorized mining areas at a scale of 1:6000 or larger. The map shall 
show, as of December 16, 1977, the lands where coal has not yet been 
removed and the lands and structures that have been used or disturbed 
to facilitate surface coal mining operations.
    (2) Consultation with tribal governments. Any requirement in this 
part for consultation with or notification to State and local 
governments shall be interpreted as requiring, in like manner, 
consultation with or notification to tribal governments. OSM shall 
consult with the Bureau of Indian Affairs with respect to special 
requirements relating to the protection of noncoal resources and with 
the Bureau of Land Management with respect to the requirements relating 
to the development, production, and recovery of mineral resources on 
Indian lands.

PART 716--SPECIAL PERFORMANCE STANDARDS

    9. The authority citation for Part 716 continues to read as 
follows:

    Authority: Sections 201, 501, 527 and 529, Pub. L. 95-87, 91 
Stat. 445 (30 U.S.C. 1201).

    10. Section 716.10 is revised to read as follows:


Sec. 716.10  Information collection.

    The Office of Management and Budget has determined that the 
information collection requirements contained in 30 CFR part 716 do not 
require approval under the Paperwork Reduction Act.

PART 717--UNDERGROUND MINING GENERAL PERFORMANCE STANDARDS

    11. The authority citation for Part 717 continues to read as 
follows:

    Authority: Sections 201 and 501, Pub. L. 95-87, 91 Stat. 445 (30 
U.S.C. 1201).

    12. Section 717.10 is revised to read as follows:


Sec. 717.10  Information collection.

    The Office of Management and Budget has determined that the 
information collection requirements contained in 30 CFR part 717 do not 
require approval under the Paperwork Reduction Act.

PART 750--REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION 
OPERATIONS ON INDIAN LANDS

    13. The authority citation for Part 750 continues to read as 
follows:

    Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq., as amended); 
and Pub. L. 100-34.

    14. Section 750.10 is revised to read as follows:


Sec. 750.10  Information collection.

    The Office of Management and Budget has determined that the 
information collection requirements contained in 30 CFR part 750 do not 
require approval under the Paperwork Reduction Act.
    15. In Sec. 750.16, the second sentence is revised to read as 
follows:


Sec. 750.16  Performance Standards.

    * * * Prior to that time, the person conducting surface coal mining 
and reclamation operations shall adhere to the performance standards of 
30 CFR Chapter VII, Subchapter B.

[FR Doc. 94-20514 Filed 8-22-94; 8:45 am]
BILLING CODE 4310-05-M