[Federal Register Volume 62, Number 61 (Monday, March 31, 1997)]
[Rules and Regulations]
[Pages 15112-15115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8103]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 756

[HO-004-FOR]


Hopi Tribe Abandoned Mine Land Reclamation Plan

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

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving a proposed amendment to the Hopi Tribe abandoned mine land 
reclamation (AMLR) plan (hereinafter, the ``Hopi plan'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The Hopi 
Tribe proposed to revise, add, or delete plan provisions pertaining to 
the preface to amended reclamation plan; purpose of the Hopi plan; 
eligible lands and water subsequent to certification; land acquisition, 
management, and disposal; rights of entry; Hopi Department of Natural 
Resources policy on public participation; organization of the Hopi 
Tribe; a description of aesthetic, cultural and recreational conditions 
on the Hopi Reservation; and a description of the flora and fauna found 
on the Hopi Reservation. The amendment revised the Hopi plan to meet 
the requirements of the corresponding Federal Regulations and to be 
consistent with SMCRA; to incorporate the additional flexibility 
afforded by the revised Federal regulations and SMCRA, as amended; to 
clarify ambiguities; and to improve operational efficiency.

EFFECTIVE DATE: March 31, 1997.

FOR FURTHER INFORMATION CONTACT:
Guy Padgett, Telephone: (505) 248-5070, Internet address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Hopi Plan

    On June 28, 1988, the Secretary of the Interior approved the Hopi 
plan. General background information on the Hopi plan, including the 
Secretary's findings and the disposition of comments, can be found in 
the June 28, 1988, Federal Register (53 FR 24262). Subsequent actions 
concerning the Hopi Tribe's plan and plan amendments can be found at 30 
CFR 756.17 and 756.18.

II. Proposed Amendment

    By letter dated September 23, 1996, the Hopi Tribe submitted a 
proposed amendment to its plan (administrative record No. HO-156) 
pursuant to SMCRA (30 U.S.C. 1201 et seq.). The Hopi Tribe submitted 
the proposed amendment at its own initiative and in response to the 
required plan amendments at 30 CFR 756.18 (a) through (h). The 
provisions of the Hopi plan that the Hopi Tribe proposed to revise, 
add, or delete were: Preface to amended reclamation plan; section I, A, 
purpose of the Hopi plan; section II, A(1), coal reclamation after 
certification, and section II, A(1)(i), limited liability (coal 
reclamation); sections II, B(1)(d) and (d)(ii), noncoal reclamation 
after certification and the construction of public facilities, and 
sections II, B(1) (h), (i), and (j), limited liability, contractor 
responsibility, and reports (noncoal reclamation); section IV, A(1), 
land acquisition, and section IV, B, management of required land; 
sections VI, A(1) and B(1), consent to entry and public notice; section 
XII, description of aesthetic, cultural and recreational conditions of 
the Hopi Reservation; and section XIV, flora and fauna of the Hopi 
Reservation.
    OSM announced receipt of the proposed amendment in the October 16, 
1996, Federal Register (61 FR 53884), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. HO-159). 
Because no one requested a public hearing or meeting, none was held. 
The public comment period ended on November 15, 1996.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 884.14 and 884.15, finds that the proposed plan amendment submitted 
by the Hopi Tribe on September 23, 1996, meets the requirements of the 
corresponding Federal regulations and is consistent with SMCRA. Thus, 
the Director approves the proposed amendment.

1. Nonsubstantive Revisions to the Hopi Plan Provisions

    The Hopi Tribe proposed revisions to the following previously-
approved plan provisions that are nonstubstantive in nature and consist 
of minor editorial, punctuation, grammatical, and recodification 
changes (corresponding SMCRA provisions and Federal regulations are 
listed in parentheses):
    Preface to amend reclamation plan, (sections 411(e) and (f) of 
SMCRA and 30 CFR 875.15), eligible projects;
    Section II, A(1)(a), (30 CFR' 874.12)(c)), eligible coal lands and 
water;
    Section II, A(1)(g), (30 CFR 874.16), contractor responsibility 
(coal reclamation);
    Section II, B(1)(d), (30 CFR 874.15(b)), noncoal reclamation after 
certification;
    Deletion of sections II, E, F, and G, (30 CFR 874.15 and .16, 
875.19 and .20, and 886.23(b)), limited liability, contractor 
responsibility, and reports;
    Section II, E, (sections 411(e) and (f) of SMCRA and 30 CFR 
875.15(d) and (e) and 884.13(c)(2)), description of needs, proposed 
construction and activities;
    Section VII, B(8), (30 CFR 884.13(c)(7)), public participation;
    Section VIII, (30 CFR 884.13(d)(1)), organization of the Hopi 
Tribe; and
    Section XIV, (30 CFR 884.13(f)), flora and fauna.
    Because the proposed revisions to these previously-approved Hopi 
plan provisions are nonsubstantive in nature, the Director finds that 
they are consistent with the corresponding provisions of SMCRA and meet 
the requirements of the Federal regulations. Therefore, the Director 
approves the proposed revisions to these plan provisions.

2. Substantive Revisions to the Hopi Plan Provisions That Are 
Substantively Identical to the Corresponding Provisions of SMCRA and 
the Federal Regulations

    The Hopi Tribe proposed revisions to the following plan provisions 
that are substantive in nature and contain language that is 
substantively identical to the requirements of the corresponding 
provisions of SMCRA and the Federal regulations (listed in 
parentheses):
    Preface to amended reclamation plan, (title IV of SMCRA and 30 CFR 
subchapter R), introductory paragraph;
    Section II, A(1)(i), (30 CFR 874.15), limited liability (coal 
reclamation);
    Section II, B(1)(h), (30 CFR 875.19), limited liability (noncoal 
reclamation);
    Section II, B(1)(i), (30 CFR 875.20), contractor responsibility 
(noncoal reclamation); and
    Section II, B(1)(j), (30 CFR 886.23(b)), reports (noncoal 
reclamation);
    Because these proposed revisions to the Hopi plan provisions are 
substantively identical to the corresponding provisions of SMCRA and 
the Federal regulations, the Director finds that they are consistent 
with the corresponding provisions of SMCRA and meet the requirements of 
the Federal regulations. Therefore, the Director approves the proposed 
revisions to these plan provisions.

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3. Revisions to the Hopi Plan Provisions Submitted in Response to 
Required Amendments

    In response to the required plan amendments at 30 CFR 756.18(d) 
through (h) (April 23, 1996, 61 FR 17833, 17836-38, finding Nos. 5, 6, 
7, and 9), the Hopi Tribe proposed to revise its plan provisions at 
section II, A(1), concerning coal reclamation after certification; 
section II, B(1)(d)(ii), concerning noncoal reclamation after 
certification; section IV, A(1), concerning land acquisition; section 
IV, B(1), concerning management of acquired lands; and section XII, 
concerning description of aesthetic, cultural and recreational 
conditions of the Hopi Reservation.
    Section II, A(1).--OSM at 30 CFR 756.18(d) (finding No. 5(b), 61 FR 
17833, 17836) required the Hopi Tribe to revise section II, A(1) to 
require that any coal reclamation activities subsequent to 
certification of coal reclamation are subject to the provisions of 
sections 401 through 410 of SMCRA.
    In response to the required amendment, the Hopi Tribe proposed to 
add such language to its plan at section II, A(1) to provide for coal 
reclamation after certification. In addition, the Hopi Tribe corrected 
a reference in this section to the effective date of the Hopi Tribe's 
certification that all known abandoned coal mine problems had been 
addressed. For the reasons discussed in the April 23, 1996, Federal 
Register, the Director finds that the proposed revisions at section II, 
A(1) of the Hopi plan meet the requirements of the Federal regulations 
at 30 CFR 875.13(b) and 875.14(b)). Accordingly, the Director approves 
the proposed revisions to section II, A(1) and removes the required 
amendment at 30 CFR 756.18(d).
    Section II, B(1)(d)(ii).--OSM at 30 CFR 756.18(e) (finding No. 
6(a), 61 FR 17833, 17836) required the Hopi Tribe to revise section II, 
B(1)(d)(ii) to delete the word ``property'' for priority two noncoal 
reclamation.
    In response to the required amendment, the Hopi Tribe revised 
section II, B(1)(d)(ii) to provide for the protection of public health, 
safety, and general welfare from the adverse effects of mineral mining 
and processing practices. For the reasons discussed in the April 23, 
1996, Federal Register, the Director finds that the proposed revision 
at section II, B(1)(d)(ii) of the Hopi plan meets the requirements of 
the Federal regulations at 30 CFR 875.15(b)(2). Accordingly, the 
Director approves the proposed revision to section II, B(1)(d)(ii) and 
removes the required amendment at 30 CFR 756.18(e).
    Section IV, A(1).--OSM at 30 CFR 756.18(f) (finding No. 7(a), 61 FR 
17833, 17837) required the Hopi Tribe to revise section IV, A(1) to 
delete the word ``coal'' from the phrase ``coal refuse thereon'' to 
ensure that lands eligible for acquisition included those on which 
refuse from both coal and noncoal mining practices are located.
    In response to the required amendment, the Hopi Tribe revised 
section IV, A(1) to provide that noncoal lands and water may be 
acquired in the same manner as coal lands and water. For the reasons 
discussed in the April 23, 1996, Federal Register, the Director finds 
that the proposed revision at section IV, A(1) of the Hopi plan meets 
the requirements of the Federal regulations at 30 CFR 875.17 and 
879.11(a). Accordingly, the Director approves the proposed revision to 
section IV, A(1) and removes the required amendment at 30 CFR 
756.18(f).
    Section IV, B(1).--OSM at 30 CFR 756.18(g) (finding No. 7(c), 61 FR 
17833, 17837) required the Hopi Tribe to revise section IV, B(1) to 
reinstate the phrase ``may be used pending'' to its provisions 
concerning the management of acquired lands.
    In response to the required amendment, the Hopi Tribe revised 
section IV, B(1) to provide that land acquired under rules of the Hopi 
plan may be used pending concurrence of the Hopi AMLR program and 
Tribal Council for any lawful purpose that is not inconsistent with the 
reclamation activities and post reclamation uses for which it was 
acquired. For the reasons discussed in the April 23, 1996, Federal 
Register, the Director finds that the proposed revision at section IV, 
B(1) of the Hopi plan meets the requirements of the Federal regulations 
at 30 CFR 879.14. Accordingly, the Director approves the proposed 
revision to section IV, B(1) and removes the required amendment at 30 
CFR 756.18(g).
    Section XII.--OSM at 30 CFR 756.18(h) (finding No. 9, 61 FR 17833, 
17838) required the Hopi Tribe to revise its plan to include 
information concerning significant aesthetic, historic or cultural, and 
recreational values.
    In response to the required amendment, the Hopi Tribe added section 
XII to provide a description of aesthetic, cultural and recreational 
conditions of the Hopi Reservation. For the reasons discussed in the 
April 23, 1996, Federal Register, the Director finds that the proposed 
addition at section XII of the Hopi plan meets the requirements of the 
Federal regulations at 30 CFR 884.13(f)(2). Accordingly, the Director 
approves the proposed revision to section IV, B(1) and removes the 
required amendment at 30 CFR 756.18(h).

4. Section I, A, Purpose of Hopi Tribe AMLR Plan

    The Hopi Tribe proposed to revise section I, A, of its plan in 
response to required amendments at 30 CFR 756.18 (a) through (c) (April 
23, 1996, 61 FR 17833, 17835, finding Nos. 4 (a), (d), and (e)). OSM 
required the Hopi Tribe to revise section I, A to (1) provide separate 
provisions for coal and noncoal reclamation activities, (2) ensure that 
the provisions listed in the purpose of the Hopi plan are consistent 
with the Hopi Tribe's certification of completion of reclamation of 
known coal-related problems, and (3) provide appropriate provisions for 
reclamation of eligible lands, waters and facilities under a noncoal 
reclamation program.
    The Hopi Tribe chose not to respond specifically to the required 
amendments, but rather proposed revisions to section I, A to provide 
that the Hopi plan's purpose is to ``protect the health, safety, and 
general welfare of members of the Hopi Tribe and members of the general 
public from the harmful effects of past coal mining practices and past 
mineral mining and processing practices.'' In addition, the Hopi Tribe 
proposed other purposes at section I, A to (1) address adverse effects 
of mining and processing practices on public facilities; (2) provide 
for public facilities in communities impacted by coal or other mineral 
mining and processing practices; and (3) address needs for activities 
or public facilities related to the coal or minerals industry on Hopi 
lands impacted by coal or minerals development.
    The first purpose at section I, A of the Hopi plan is similar to 
the provisions of sections 403(a)(2) and 411(c)(2) of SMCRA, which 
provide, respectively, for the protection of health, safety, and 
general welfare from the adverse effects of coal mining practices, and 
from the adverse effects of mineral mining and processing practices. 
The additional purposes at section I, A are similar to the provisions 
of section 411(e) of SMCRA and 30 CFR 875.15(a), which provide for the 
protection, repair, replacement, construction, or enhancement of 
utilities and such other facilities serving the public adversely 
affected by mineral mining and processing practices, and the 
construction of public facilities in communities impacted by coal or 
other

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mineral mining and processing practices.
    Because the Hopi Tribe previously certified that it had completed 
the reclamation of all known coal-related problems (59 FR 29719, June 
9, 1994), its plan appropriately provides for both coal and noncoal 
reclamation. Therefore, the Director finds that section I, A of the 
Hopi plan, which provides a general description of the purpose of the 
Hopi Tribe's AMLR program, including descriptions of coal and noncoal 
reclamation activities, is not inconsistent with sections 403 and 411 
of SMCRA and meets the requirements of the Federal regulations at 30 
CFR parts 874 and 875. Accordingly, the Director approves the proposed 
revisions at section I, A and removes the required amendments at 30 CFR 
756.18 (a) through (c).

5. Sections VI, A(1) (a) through (c) and B(1), Consent To Enter and 
Public Notice

    The Hopi Tribe proposed to revise its plan provisions at sections 
VI, A(1) (a) through (c), by deleting provisions concerning the ability 
to enter lands for emergency reclamation. The Hopi Tribe also proposed 
to revise section VI, B(1) by deleting the phrase ``except in emergency 
situations,'' from the requirement for the public notice when written 
consent for entry cannot be obtained.
    Deletion of the references to emergency reclamation and emergency 
situations is consistent with the fact that the Hopi Tribe is unable to 
exercise emergency powers on Hopi lands, because the Hopi Tribe did not 
request authority to conduct emergency response reclamation under the 
original Hopi plan submission (53 FR 24262, June 28, 1988), and it has 
not subsequently sought emergency powers through the amendment process. 
For these reasons, only OSM, and its agents, employees, and 
contractors, are authorized to conduct emergency reclamation activities 
on Hopi lands. Based upon OSM's exclusive emergency reclamation 
authority on Hopi lands, the Director finds that the deletions of 
references to emergency reclamation and emergency situations at 
sections VI, A(1)(c) and B(1) are consistent with section 410 of SMCRA 
and meet the requirements of 30 CFR 877.14. Therefore, the Director 
approves these proposed plan revisions.

IV. Summary and Disposition of Comments

    Following are summaries of all substantive written comments on the 
proposed amendment that were received by OSM, and OSM's responses to 
them.

1. Public Comments

    OSM invited public comments on the proposed amendment, but none 
were received.

2. Federal Agency Comments

    Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), OSM solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Hopi plan (administrative record 
No. HO-157).
    (a) Bureau of Indian Affairs (BIA), Hopi Agency.--BIA commented on 
October 11, 1996, that the ``Preface to Amended Reclamation Plan'' 
section of the Hopi plan should be revised to clarify the order of 
priority for future coal AMLR projects (administrative record No. HO-
158). Specifically, BIA recommended that the last paragraph on page 
iii, which provides a description of the Hopi Tribe's priority system, 
should be revised to indicate that projects with the most adverse 
impacts to the public are of the highest priority.
    OSM responds that the preface of the Hopi plan provides for both 
coal and noncoal reclamation projects, and that the order of priority 
provided by the preface is consistent with the Federal regulations at 
30 CFR part 875. Even though the Hopi Tribe provided certification of 
completion of all known coal-related problems (59 FR 29721, June 9, 
1994), it continues to have a responsibility to give any coal-related 
problems that are found or that occur after certification top priority 
for AMLR funding. The preface of the Hopi plan reflects this 
requirement by stating that ``newly discovered projects adversely 
affected by coal mining'' (emphasis added) would receive the highest 
priority for AMLR funding. The Director finds that the language 
contained in the preface of the Hopi plan concerning the priority of 
coal projects is consistent with the counterpart Federal regulations at 
30 CFR 875.13(a)(3), and is not requiring the Hopi Tribe to provide any 
additional clarification about priorities as suggested by BIA.
    (b) Arizona State Historic Preservation Officer (SHPO).--On 
November 14, 1996, the Arizona SHPO responded that it was their opinion 
that the proposed amendment should have no effect on any property 
listed on the National Register of Historic Places or any project 
eligible for listing (administrative record No. HO-160).

V. Director's Decision

    Based on the above findings, the Director approves the Hopi Tribe's 
proposed plan amendment as submitted on September 23, 1996.
    The Director approves, as discussed in: Finding No. 1, the preface 
to the amended reclamation plan, concerning eligible projects, section 
II, A(1)(a), concerning eligible coal lands and water, section II, A, 
(1)(g), concerning contractor responsibility for coal reclamation, 
section II, B(1)(d), concerning noncoal reclamation after 
certification, deletion of sections II, E, F, and G, concerning limited 
liability, contractor responsibility, and reports for noncoal 
reclamation, section II, E, concerning description of needs, proposed 
construction and activities, section VII, B(8), concerning public 
participation, section VIII, concerning organization of the Hopi Tribe, 
and section XIV, concerning flora and fauna; finding No. 2, the preface 
to the amended reclamation plan, concerning the introductory paragraph, 
section II, A(1)(i), concerning limited liability for coal reclamation, 
section II, B(1)(h), concerning limited liability for noncoal 
reclamation, section II, B(1)(i), concerning contractor responsibility 
for noncoal reclamation, and section II, B(1)(j), concerning reports 
for noncoal reclamation; finding No. 3, section II, A(1), concerning 
coal reclamation after certification, section II, B(1)(d)(ii), 
concerning noncoal reclamation after certification, section IV, A(1), 
concerning land acquisition, section IV, B(1), concerning management of 
acquired lands, and section XII, concerning description of aesthetic, 
cultural and recreational conditions of the Hopi Reservation; finding 
No. 4, section I, A, concerning the purpose of Hopi plan; and finding 
No. 5, sections VI, A(1) (a) through (c) and B(1), concerning consent 
to entry and public notice.
    The Director approves the plan provisions as proposed by the Hopi 
Tribe with the provision that they be fully promulgated in identical 
form to the plan provisions submitted to and reviewed by OSM and the 
public.
    The Federal regulations at 30 CFR Part 756, codifying decisions 
concerning the Hopi plan, are being amended to implement this decision. 
This final rule is being made effective immediately to expedite the 
State or Indian tribe plan amendment process and to encourage States or 
Indian tribes to bring their plans into conformity with the Federal 
standards without undue delay. Consistency of State or Indian tribe and 
Federal standards is required by SMCRA.

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VI. Procedural Determinations

1. Executive Order 12866

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

2. Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that this rule meets the applicable standards of subsections 
(a) and (b) of that section. However, these standards are not 
applicable to the actual language of State or Indian tribe AMLR plans 
and revisions thereof since each such plan is drafted and promulgated 
by a specific State or Indian tribe, not by OSM. Decisions on proposed 
State or Indian tribe AMLR plans and revisions thereof submitted by a 
State or Indian tribe are based on a determination of whether the 
submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-
1243) and the applicable Federal regulations at 30 CFR parts 884 and 
888.

3. National Environmental Policy Act

    No environmental impact statement is required for this rule since 
agency decisions on proposed State or Indian tribe AMLR plans and 
revisions thereof are categorically excluded from compliance with the 
National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the 
Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

4. Paperwork Reduction Act

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

5. Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State or Indian tribe submittal which is the subject of this rule 
is based upon Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
established by SMCRA or previously promulgated by OSM will be 
implemented by the State or Indian tribe. In making the determination 
as to whether this rule would have a significant economic impact, the 
Department relied upon the data and assumptions in the analyses for the 
corresponding Federal regulations.

6. Unfunded Mandates Reform Act

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

List of Subjects in 30 CFR Part 756

    Abandoned mine reclamation programs, Indian lands, Surface mining, 
Underground mining.

    Dated: March 13, 1997.
James F. Fulton,
Acting Regional Director, Western Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter E of the Code of Federal Regulations is amended as set forth 
below:

PART 756--INDIAN TRIBE ABANDONED MINE LAND RECLAMATION PROGRAMS

    1. The authority citation for part 756 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq. and Pub. L. 100-71.

    2. Section 756.17 is amended by adding paragraph (c) to read as 
follows:


Sec. 756.17  Approval of Hopi Tribe abandoned mine land reclamation 
plan amendments.

* * * * *
    (c) Revisions to, additions of, or deletions of the following plan 
provisions, as submitted to OSM on September 23, 1996, are approved 
effective March 31, 1997:

Preface to Amended Reclamation Plan--Introductory paragraph and 
Eligible Projects;
Section I, A--Purpose of Hopi plan;
Section II, A(1)--Certification of Completion of Coal Sites;
Section II, A(1)(a)--Eligible Coal Lands and Water;
Section II, A, (1)(g)--Contractor Responsibility (for coal 
reclamation);
Section II, (A)(1)(i)--Limited Liability (for coal reclamation);
Sections II, (B)(1)(d) and (d)(ii)--Noncoal Reclamation After 
Certification;
Sections II, (B)(1)(h), (i), and (j)--Limited Liability, Contractor 
Responsibility, and Reports (for noncoal reclamation);
Deletion of sections II, E, F, and G--Limited Liability, Contractor 
Responsibility, and Reports (for noncoal reclamation);
Section II, E--Description of Needs, Proposed Construction and 
Activities;
Sections IV, (A)(1) and (B)(1)--Acquisition and Management of 
Acquired Lands;
Sections VI, A(1) (a) through (c) and B(1)--Consent to Entry and 
Public Notice;
Section VII, B(8)--Public Participation;
Section VIII--Organization of the Hopi Tribe;
Section XII--Description of Aesthetic, Cultural and Recreational 
Conditions of the Hopi Reservation; and
Section XIV--Flora and Fauna.


Sec. 756.18  [Amended]

    3. Section 756.18 is amended by removing and reserving paragraphs 
(a) through (b) and removing paragraphs (c) through (h).

[FR Doc. 97-8103 Filed 3-28-97; 8:45 am]
BILLING CODE 4310-05-M