[Federal Register Volume 59, Number 206 (Wednesday, October 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26559]


[[Page Unknown]]

[Federal Register: October 26, 1994]


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Part IV





Department of the Interior





_______________________________________________________________________



Office of Surface Mining Reclamation and Enforcement



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30 CFR Part 773




Notification and Permit Processing; Proposed Rule
DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 773

RIN 1029-AB80

 
Notification and Permit Processing

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
proposes to amend its regulations in response to a petition for 
rulemaking. The rulemaking would require that the regulatory authority 
provide to each person who was a party to an informal conference its 
written findings granting, requiring modification of, or denying a 
permit application. The rulemaking would also require both that an 
approved permit contain in its permit area only lands for which the 
applicant has established a right-to-enter and commence surface coal 
mining and reclamation operations, and that compliance with an approved 
permit be based on activities to be conducted solely upon such lands.

DATES: Written comments: OSM will accept written comments on the rule 
until 5 p.m. Eastern time on December 27, 1994.
    Public hearings: OSM will hold a public hearing on the proposed 
rule, at a time and place to be announced, in Vincennes, Indiana.
    Individuals wishing to attend, but not testify at the hearing, 
should contact the person identified under FOR FURTHER INFORMATION 
CONTACT beforehand to verify that it will be held. Any disabled 
individual who has need for a special accommodation to attend a public 
hearing should also contact the person listed under FOR FURTHER 
INFORMATION CONTACT.

ADDRESSES: Written comments: Hand-deliver to the Office of Surface 
Mining Reclamation and Enforcement, Administrative Record, Room 660, 
800 North Capitol Street, NW., Washington, DC 20001; or mail to the 
Office of Surface Mining Reclamation and Enforcement, 1951 Constitution 
Avenue, Room 660NC, Washington, DC 20240.
    Comments may also be sent through the Internet to the Branch of 
Research and Technical Standards, Internet address: 
[email protected]. Copies of any messages received 
electronically will be filed with the Administrative Record.

FOR FURTHER INFORMATION CONTACT: Scott Boyce, Branch of Research and 
Technical Standards, Office of Surface Mining Reclamation and 
Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue, 
NW., Room 640NC, Washington, DC 20240; Telephone: (202) 343-3839.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures
II. Background
III. Discussion of Proposed Rule
IV. Procedural Matters

I. Public Comment Procedures

Written Comments

    Written comments submitted on the proposed rule should be specific, 
should be confined to issues pertinent to the proposed rule, and should 
explain the reason for any recommended change. Where practicable, 
commenters should submit three copies of their comments (see 
ADDRESSES). Comments received after the close of the comment period or 
delivered to addresses other than those listed above (see DATES) may 
not be considered or included in the Administrative Record for the 
final rule.

Public Hearings

    OSM will hold a public hearing on the proposed rule, at a time and 
place to be announced, in Vincennes, Indiana. Any person interested in 
participating in the hearing should inform Scott Boyce (see FOR FURTHER 
INFORMATION CONTACT) either orally or in writing by 5 p.m. Eastern 
time, December 27, 1994. If no one has contacted Mr. Boyce to express 
an interest in participating in a hearing by that date, the hearing 
will not be held. If only one person expresses an interest, a public 
meeting rather than a hearing may be held and the results included in 
the Administrative Record.
    If a hearing is held, it will continue until all persons wishing to 
testify have been heard. To assist the transcriber and ensure an 
accurate record, OSM requests that persons who testify at the hearing 
give the transcriber a copy of their testimony. To assist OSM in 
preparing appropriate questions, OSM also requests that persons who 
plan to testify submit to OSM at the address previously specified for 
the submission of written comments (see ADDRESSES) an advance copy of 
their testimony.

II. Background

    In a letter dated September 29, 1992, Mr. Jim B. Wyant of 
Vincennes, Indiana, presented a petition for rulemaking to OSM. A 
``Notice of availability of a petition to initiate rulemaking and 
request for comment'' was published in the Federal Register, November 
12, 1992, (57 FR 53670). After consideration of the petitioner's 
requests and public comments received on the petition, the Director of 
OSM published his ``Notice of decision on petition for rulemaking'' and 
stated that ``OSM will initiate Federal rulemaking proposing to revise 
the permit application provisions of 30 CFR 773.15 to require 
notification of all parties to an informal conference of any decision 
to require modification of the permit application. OSM will also 
initiate a rulemaking to revise the provisions of 30 CFR 778.15 to 
address the degree to which lands may be included in the permit area 
where the permittee does not have the right-to-enter.'' (August 24, 
1993, 58 FR 44630)

III. Discussion of Proposed Rule

Notification Requirements

    OSM proposes to modify 30 CFR 773.15, Review of Permit Applications 
at 773.15(a)(1). The sentences of this subparagraph would be 
redesignated as (1), (i) and (ii) with an additional sentence added as 
subsection (iii). The added sentence would require that the regulatory 
authority ``(p)rovide a copy of the written decision granting, 
requiring modification of, or denying the permit, and stating the 
specific reasons for the decision to the permit applicant and to each 
person who was a party to the conference.''
    OSM is proposing to revise Sec. 773.15(a) because its current 
regulations 30 CFR 773.19(b)(1) only require the regulatory authority 
to provide written notification of its final decision on the permit 
application to all parties to an informal conference. Its regulations 
at Sec. 773.15(a) do not, however, require the regulatory authority to 
provide the same notification to the same parties when that authority 
requires a modification of the permit application. Section 773.15(a) 
would, therefore, be revised to require the regulatory authority to 
provide parties to an informal conference the same notification of 
decisions modifying the permit application as for decisions approving 
or denying the application.
    The 1979 final permanent regulations at 30 CFR 786.23(c) originally 
required the regulatory authority to notify all parties to an informal 
conference of any decision granting, modifying or denying the permit 
application, and stating the specific reasons therefor in the decision. 
(March 13, 44 FR 15381) This required notice provision was dropped 
without explanation in the 1983 revision of OSM's permitting 
regulations. (September 28, 48 FR 44371, 44395) Thus, under the current 
30 part 773 regulations, and as noted by the petitioner, concerned 
parties who have taken an active role in the permitting process through 
participation in informal conferences may find that regulatory 
authority decisions requiring modification of the permit application 
are conveyed solely to the applicant. These concerned parties would 
receive no feedback on important permit application issues until the 
regulatory authority's final decision on the application is conveyed to 
all parties pursuant to Sec. 773.19(b)(1). The proposed revisions to 
Sec. 773.15(a) would address this inequity by reinstating the 1979 
requirement that all parties to an informal conference be provided the 
regulatory authority's written decision granting, modifying, or denying 
the permit application and stating the specific reasons therefore in 
the decision.

Permit Processing

    In OSM's notice of decision on the petition for rulemaking 
published in the Federal Register August 24, 1993, the agency stated 
that it would ``initiate a rulemaking to revise the provisions of 30 
CFR 778.15 to address the degree to which lands may be included in the 
permit area where the permittee does not have the right-to-enter.'' 
Later, in considering this commitment, OSM concluded that it could be 
more appropriately implemented by proposing revisions to Sec. 773.15, 
Review of permit applications, and 30 CFR 773.17, Permit conditions, 
rather than to Sec. 778.15, Right-of-entry information. Existing 
section 773.15 would therefore be revised to add paragraph (c)(13) 
requiring both that the approved permit contain only lands for which 
the applicant has established a right-to-enter and conduct surface 
mining and reclamation operations and that compliance with the 
operation and reclamation plans be based upon activities conducted 
solely upon such lands.

    Note: A new but different subparagraph Sec. 773.15(c)(13) has 
also been proposed under the remining rulemaking. (June 2, 1994, 59 
FR 28744) If both this and the remining rulemaking are finalized as 
proposed, the (c)(13) subparagraph of the second effective rule will 
be redesignated as (c)(14).

    Existing Sec. 773.17 would also be revised to be consistent with 
proposed Sec. 773.15(c)(13) and would, as a permit condition, impose a 
similar requirement that the permit area of an approved permit contain 
only lands for which the applicant has established a right-to-enter and 
conduct surface mining and reclamation operations.
    Section 507(b)(9) of the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act), 30 U.S.C. 1201 et seq., states, ``the 
applicant shall file with the regulatory authority on an accurate map 
or plan, to an appropriate scale, clearly showing the land to be 
affected as of the date of the application, the area of land within the 
permit area upon which the applicant has the legal right-to-enter and 
commence surface mining operations on that area affected, and whether 
that right is the subject of pending court litigation. Provided, That 
nothing in this Act shall be construed as vesting in the regulatory 
authority the jurisdiction to adjudicate property title disputes.''
    The Act and its implementing regulations are silent on the specific 
question of whether the approved permit can include land for which the 
applicant does not have right-of-entry (``uncontrolled land'') and 
which will not be disturbed under the permit until such right-of-entry 
is obtained. It has, however, been OSM's practice under its Federal and 
Indian lands programs to allow inclusion in the permit application of 
land for which the applicant can not establish right-of-entry but to 
prohibit inclusion of such land in the permit at the time of issuance.
    Promulgation of this Federal practice as a national rule would end 
the practice in a minority of approved program States of allowing 
inclusion in the approved permit of land for which the applicant does 
not have right-of-entry. The owners of such lands often complain that 
this inclusion clouds their title, depresses their property values, and 
interferes with their ability to enjoy their property rights.
    The language of proposed Sec. 773.15(c)(13) ``(t)he applicant has 
demonstrated that the approved permit area contains only lands for 
which the applicant has established a right-to-enter and conduct 
surface coal mining and reclamation operations'' and similar language 
in proposed Sec. 773.17(a) are intended to prohibit the inclusion of 
uncontrolled land in the permit area of approved permits.
    OSM's oversight of those State programs allowing uncontrolled land 
in the permit area of approved permits has shown that the validity of 
the operation and reclamation plans required by 30 CFR part 780 may be 
substantially compromised by the applicant's subsequent inability to 
gain access to blocks of land within the permit area upon which the 
plans were predicated. Examples exist where central elements upon which 
approval was based required modification when the applicant 
subsequently was unable to obtain access to required land. In various 
instances, proposed spoil and soil storage areas, borrow areas, and 
facility areas have been unavailable for use. Sediment control 
strategies have been compromised when land for sediment ponds and 
diversion ditches in the approved operation and reclamation plans was 
unavailable. Changes have occurred which require recalculation of the 
bond amount. While OSM recognizes the need for operation and 
reclamation plans to be dynamic enough to accommodate new information 
and unexpected conditions that may develop, changes such as those 
described militate against the credibility of OSM's regulatory scheme 
which is to be based upon the approval or rejection of accurate and 
reliable operation and reclamation plans. Accordingly, and in partial 
response to industry's comments discussed below, OSM is also proposing 
that Sec. 773.15(c)(13) include the requirement that compliance with 
the operation and reclamation plans be based upon activities to be 
conducted solely upon lands for which the applicant has the right-to-
enter and conduct surface mining and reclamation operations. This 
language is intended to put all parties on notice that operation and 
reclamation plans included in the approved permit cannot be based on 
activities to be conducted on uncontrolled land.
    Several commenters opposing the petition argued that the inclusion 
of uncontrolled land in the permit areas of permit applications and 
approved permits is necessary to accommodate the complexities of real 
estate transaction involved in mine plan development and to allow for 
environmental planning based on a more conceptually complete mining and 
reclamation plan. While OSM acknowledges that inclusion of uncontrolled 
lands in an approved permit may allow the formulation of a 
comprehensive and cumulative operation and reclamation plan and 
environmental analysis, such plans and analysis may not prove reliable 
and, therefore, may not provide the regulatory authority with a 
reasonable basis for concluding that the lands for which the applicant 
has right-of-entry can actually be mined and reclaimed in accordance 
with the Act and in compliance with its implementing regulations. 30 
CFR 773.15(c) (1), (2) and 780.2. Neither would the commenter's 
suggestion that the approved permit be conditioned to authorize mining 
only on lands for which right-of-entry is obtained address this 
potential defect in the permitted operation and reclamation plans and 
associated environmental analysis.
    Proposed Secs. 773.15(c)(13) and 773.17(a) would not preclude 
inclusion under Sec. 778.15(a) of a reasonable amount of uncontrolled 
land in the permit application thus accommodating the need for 
continued real estate transactions during the permit review process and 
facilitating the development of environmental projections based on 
mining and reclamation on a scale the applicant plans to achieve. 
However, under the proposed rule permit issuance would be predicated 
upon the existence of a clearly discernible and finite permit area in 
the operation and reclamation plans where the applicant's ability to 
obtain right-of-entry is not a variable that would influence the 
execution of the plans as approved.
    In practical terms, the requirement of proposed Sec. 773.15(c)(13) 
that ``compliance with the operation and reclamation plans is based 
upon activities to be conducted solely upon such lands'' means that 
immediately prior to permit issuance the regulatory authority must 
reassess the legitimacy of the applicant's operation and reclamation 
plans taking into account the impact of the applicant's lack of access 
to any uncontrolled land. Loss of a piece of land necessary for the 
accomplishment of the operation or reclamation plan could require 
permit modification or permit denial. It is anticipated that the 
Sec. 773.15(c)(13) requirement will militate against inclusion in the 
permit application of properties for which the applicant is unlikely to 
obtain right-of-entry by the time of permit issuance. This should in 
turn accrue to the benefit of landowners who never wanted their 
properties included in the permit application. It should also accrue to 
the benefit of the environment as planning would be based on more 
plausible real estate projections.
    Proposed Secs. 773.15(c)(13) and 773.17(a) are seen as striking a 
reasonable balance between not unnecessarily burdening the legitimate 
mining industry and protecting the rights of landowners while providing 
the regulatory authority with the accurate, comprehensive and reliable 
information it needs to comply with its responsibilities under 30 CFR 
773.15(c)(1), (2) and 780.2. These proposals are not intended to alter 
existing standards for establishing right-of-entry. They merely require 
that the applicant must demonstrate that the permit area of the 
approved permit contains only lands for which he has established a 
right-of-entry.

IV. Procedural Matters

Federal Paperwork Reduction Act

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

Executive Order 12866

    This proposed rule does not require Office of Management and Budget 
review under Executive Order 12866.

Regulatory Flexibility Act

    The Department of the Interior has determined, pursuant to the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that the proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. Although OSM does not have data on the number 
of coal mine operations or the number of landowners and amount of land 
that would be affected by this rule, data obtained from OSM Field 
Offices on 14 States indicates that only 3 of those States do not 
notify participants as to the outcome of informal conferences, and that 
only 6 out of 18 States for which data is available allow land in the 
permit area of an approved permit for which the applicant does not have 
right-of-entry authorization. However, to notify the participants to a 
conference of the outcome of that conference is a procedural type of 
action entailing minor economic consequences comprised of the cost of 
mailing notices to the participants, and to require that an applicant 
have right-of-entry authorization to all lands included in the permit 
area of an approved permit does not take any economic rights from the 
applicant, nor does it impose significant additional costs on the 
applicant. Therefore, the proposed revisions are not expected to be of 
economic significance.

National Environmental Policy Act

    OSM has prepared a draft environmental assessment (EA), and has 
made a tentative 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). The EA is on file in the OSM Administrative Record at the 
address specified previously (see ADDRESSES). An EA will be completed 
on the final rule and a finding made on the significance of any 
resulting impacts prior to promulgation of the final rule.

Civil Justice Reform

    This proposed 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 proposed 
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 proposed rule would have the same preemptive effect as other 
standards adopted pursuant to SMCRA. To retain primacy, States have to 
adopt and apply standards for their regulatory programs that are no 
less effective than those set forth in OSM's rules. Any State law that 
is inconsistent with or that would preclude implementation of this 
proposed rule would be subject to preemption under SMCRA section 505 
and implementing regulations at 30 CFR 730.11. To the extent that the 
proposed rules would result in preemption of State law, the provisions 
of SMCRA are intended to preclude inconsistent State laws and 
regulations. This approach is established in SMCRA, and has been 
judicially affirmed. See Hodel v. Virginia Surface Mining and 
Reclamation Ass'n, 452 U.S. 264 (1981).
    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.
    D. What is the retroactive effect, 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. In situations 
involving OSM application of the rule, applicable administrative 
procedures may be found at 43 CFR part 4. In situations involving State 
regulatory authority application of provisions equivalent to those 
contained in this rule, applicable administrative procedures are set 
forth in the particular State program.
    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 and 701.5.
    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.

    Author: The principal author of this rule is Scott Boyce, Branch 
of Research and Technical Standards, Office of Surface Mining 
Reclamation and Enforcement, 1951 Constitution Avenue, NW., Room 
640NC, Washington, DC 20240; Telephone: (202) 343-3839.

List of Subjects in 30 CFR Part 773

    Administrative practice and procedure, Permit processing, Public 
participation, Notification of decisions, Reporting and recordkeeping 
requirements, Surface mining, Underground mining.

    Dated: September 26, 1994.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.

    Accordingly, OSM proposes to amend 30 CFR Part 773 as follows:

PART 773--REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING

    1. The authority citation for Part 773 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq., as amended; 16 U.S.C. 470 et 
seq.; 16 U.S.C. 1531 et seq.; 16 U.S.C. 661 et seq.; 16 U.S.C. 703 
et seq.; 16 U.S.C. 668a; 16 U.S.C. 469 et seq.; 16 U.S.C. 470aa et 
seq.; and Pub L. 100-34.

    2. Section 773.15 is amended by revising paragraph (a)(1); and 
adding a new paragraph (c)(13) to read as follows:


Sec. 773.15  Review of permit applications.

    (a) * * *
    (1) The regulatory authority shall--
    (i) Review the application for a permit, revision, or renewal; 
written comments and objections submitted; and records of any informal 
conference or hearing held on the application and issue a written 
decision, within a reasonable time set by the regulatory authority, 
either granting, requiring modification of, or denying the application.
    (ii) If an informal conference is held under Sec. 773.13(c), make a 
decision within 60 days of the close of the conference, unless a later 
time is necessary to provide an opportunity for a hearing under 
paragraph (b)(2) of this section; and
    (iii) Provide a copy of the written decision granting, requiring 
modification of, or denying the permit, and stating the specific 
reasons for the decision to the permit applicant and to each person who 
was a party to the conference.
* * * * *
    (c) * * *
    (13) The applicant has demonstrated that the approved permit area 
contains only lands for which the applicant has established a right-to-
enter and conduct surface coal mining and reclamation operations and 
that compliance with the operation and reclamation plans is based upon 
activities to be conducted solely upon such lands.
* * * * *
    3. Section 773.17, paragraph (a), is amended by adding a sentence 
at the end of the paragraph to read as follows:


Sec. 773.17  Permit conditions.

* * * * *
    (a) * * * The permit area of an approved permit shall contain only 
lands for which the applicant has established a right-to-enter and 
conduct surface coal mining and reclamation operations.
* * * * *
[FR Doc. 94-26559 Filed 10-25-94; 8:45 am]
BILLING CODE 4310-05-M