[Federal Register Volume 64, Number 33 (Friday, February 19, 1999)]
[Proposed Rules]
[Pages 8464-8476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4153]



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Part III





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Part 700, et al.



Indian and Federal Lands; Proposed Rule

  Federal Register / Vol. 64, No. 33 / Friday, February 19, 1999 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 700, 740, 746 and 750

RIN 1029-AB83


Indian and Federal Lands

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) 
is proposing to amend its regulations by clarifying the definition of 
``Indian lands'' at 30 CFR 700.5 for purposes of the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA or the Act) and the 
implementing regulations at 30 CFR Chapter VII. The proposed 
clarification is required pursuant to a settlement agreement between 
the Department of the Interior and the Navajo Nation and Hopi Indian 
Tribe to settle the tribes' challenges to a 1989 rulemaking governing 
coal leases and surface coal mining and reclamation operations on 
Indian lands. OSM is also proposing various changes to the Federal 
lands program at 30 CFR Parts 740 and 746, and the Indian lands program 
at 30 CFR Part 750, in conjunction with the proposed clarification to 
the definition of Indian lands.

DATES: Written comments: We will accept written comments on the 
proposed rule until 5 p.m., Eastern time, on April 20, 1999.
    Public hearings: Upon request, we will hold public hearings on the 
proposed rule at dates, times and locations to be announced in the 
Federal Register prior to the hearings. We will accept requests for 
public hearings until 5 p.m., Eastern time, on March 12, 1999. 
Individuals wishing to attend, but not testify, at any hearing should 
contact the person identified under FOR FURTHER INFORMATION CONTACT 
before the hearing date to verify that the hearing will be held.

ADDRESSES: If you wish to comment, you may submit your comments on this 
proposed rule by any one of several methods. You may mail comments to 
the Office of Surface Mining Reclamation and Enforcement, 
Administrative Record, Room 101, 1951 Constitution Avenue, NW, 
Washington, D.C. 20240. You may also comment via the Internet to OSM's 
Administrative Record at: [email protected].
    You may submit a request for a public hearing orally or in writing 
to the person and address specified under FOR FURTHER INFORMATION 
CONTACT. The address, date and time for any public hearing held will be 
announced prior to the hearings. Any individual who requires special 
accommodation to attend a public hearing should also contact the person 
listed under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT:
    Ms. Suzanne Hudak, Office of Surface Mining Reclamation and 
Enforcement, 1951 Constitution Avenue, NW, Washington, DC 20240; 
Telephone (202) 208-2661. E-mail address: [email protected].

SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. General Background on Proposed Rule
III. Discussion of Proposed Rule
    A. Part 700: General.
    1. Proposed Clarification of Definition of Indian Lands.
    2. Basis and Purpose for Proposed Clarification of Definition.
    3. Navajo Land Consolidation Area.
    4. Surface and Mineral Ownership of Individual Indian Trust 
Allotments Within the Navajo Land Consolidation Area.
    5. Coal-Bearing Allotments Within the Off-Reservation Portion of 
the Navajo Land Consolidation Area.
    6. Surface Coal Mining Operations Within the Navajo Land 
Consolidation Area.
    7. SMCRA Regulation at the McKinley Mine.
    8. Transfer of SMCRA Regulatory Jurisdiction.
    9. Allocation of Abandoned Mine Land Fees and Title V Funding .
    B. 30 CFR Parts 740 and 746: General Requirements for Surface 
Coal Mining and Reclamation Operations on Federal ands; Review and 
Approval of Mining Plans.
    1. Section 740.1: Scope and purpose.
    2. Section 740.4: Responsibilities.
    3. Section 740.5: Definitions.
    4. Section 740.11: Applicability.
    5. Section 746.13: Decision document and recommendation on 
mining plan.
    C. 30 CFR Part 750: Requirements for Surface Coal Mining and 
Reclamation Operations on Indian Lands.
    1. Section 750.6: Responsibilities.
    2. Section 750.12: Permit applications.
IV. Procedural Determinations.

I. Public Comment Procedures

Electronic or Written Comments

    If you are submitting written comments on the proposed rule please 
be specific, limit your comments to issues pertinent to the proposed 
rule, and explain the reason for your recommendations. Except for 
comments provided electronically, please submit three copies of your 
comments, if possible, to our Administrative Record Room at the address 
listed above (see ADDRESSES). All comments sent to the Administrative 
Record Room will be logged into the administrative record for the 
rulemaking. However, we will not consider or respond to your comments 
when developing the final rule if they are received after the close of 
the comment period (see DATES). We will make every attempt to log all 
comments into the administrative record, but comments delivered to 
addresses other than those listed in ADDRESSES may not be logged in.

Public Hearing

    We will hold a public hearing on the proposed rule upon request 
only. The time, date, and address for any hearing will be announced in 
the Federal Register at least 7 days prior to the hearing.
    Any person interested in participating at a hearing should inform 
Ms. Hudak (see FOR FURTHER INFORMATION CONTACT), either orally or in 
writing, of the desired hearing location by 5:00 p.m., Eastern time, on 
March 12, 1999. If no one has contacted Ms. Hudak to express an 
interest in participating in a hearing at a given location by that 
date, a hearing will not be held. If only one person expresses an 
interest, a public meeting rather than a hearing may be held, with the 
results included in the Administrative Record.
    If a hearing is held, it will continue until all persons wishing to 
testify have been heard. The hearing will be transcribed. To assist the 
transcriber and ensure an accurate record, we request that each person 
who testifies at a hearing provide the transcriber with a written copy 
of his or her testimony. To assist us in preparing appropriate 
questions, we also request, if possible, that each person who plans to 
testify submit to us at the address previously specified for the 
submission of written comments (see ADDRESSES) an advance copy of his 
or her testimony.
    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: RIN 1029-AB83'' and your name and return address in your 
Internet message. If you do not receive a confirmation from the system 
that we have received your Internet message, contact us directly at 
202-208-2847.
    We will make comments, including names and addresses of 
respondents, available for public review during regular business hours. 
Individual respondents may request confidentiality, which we will honor 
to the extent allowable by law. If you wish to withhold your name or 
address, except for the city or town, you must state this prominently 
at the beginning of your comment. However, we will not

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consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

II. General Background on Proposed Rule

    The regulations proposed here are primarily intended to implement 
one of the two rulemaking provisions set forth in the settlement 
agreement entered into between the Department of the Interior (DOI or 
the Department) and the Navajo Nation and Hopi Indian Tribe in April 
1995. The agreement settled litigation stemming from tribal challenges 
to final rules published on May 22, 1989 (54 FR 22182) that amended 
OSM's regulations at 30 CFR Part 750 governing surface coal mining 
regulatory requirements on Indian lands and the Bureau of Indian 
Affairs' (BIA) regulations at 25 CFR Part 200 governing leases of coal 
on Indian lands. The settlement was approved by the U.S. District Court 
for the District of Columbia in June 1995. Hopi Indian Tribe v. 
Babbitt, Nos. 89-2055, 89-2066 (D.D.C. June 20, 1995).
    In their legal challenges to the 1989 rulemaking, the plaintiffs 
complained, among other things, that the designation of OSM in the 
final rule as the exclusive and sole regulatory authority over surface 
coal mining operations on Indian lands violated section 710 (Indian 
lands) of SMCRA. The tribes contended that the Secretary's refusal to 
delegate surface coal mining regulatory authority to the tribes was 
contrary to his fiduciary and trust obligations to the tribes.
    Additionally, the Navajo Nation claimed that off-reservation trust 
allotments are Indian lands subject to OSM regulation under SMCRA and 
that the Secretary may not lawfully allow or delegate to the States any 
permitting or regulatory authority under SMCRA on such lands.
    The tribes also raised objections to BIA's regulations governing 
coal leases on Indian lands, claiming that the Secretary must 
incorporate SMCRA standards as terms and conditions in all such 
existing leases. The Navajo Nation further asserted that the Secretary 
must incorporate, at the tribe's request, other non-SMCRA terms and 
conditions into such leases issued after SMCRA's enactment.
    The Secretary, in the settlement agreement, maintained his position 
that he presently lacks statutory authorization to delegate SMCRA 
regulatory primacy to Indian tribes. He did, however, agree to consider 
in good faith requests by the tribes to contract specific regulatory 
functions, provided such requests are in compliance with the Indian 
Self-Determination Act (25 U.S.C. 450 et seq.). The Secretary also 
agreed that the Navajo Nation and the Hopi Tribe retain the inherent 
sovereign authority to regulate surface coal mining operations on lands 
within their jurisdiction, provided such regulation is consistent with 
and at least as stringent as regulation under SMCRA, and does not 
interfere or conflict with OSM's Federal program for Indian lands.
    Under the terms of the settlement agreement, the Secretary agreed, 
among other things, to propose a rule clarifying the definition of 
Indian lands at 30 CFR 700.5 for purposes of SMCRA and the implementing 
regulations. Specifically, the Secretary agreed to include in the 
proposed definition ``all allotments held in trust by the Federal 
government for an individual Indian or Indians, the Indian titles to 
which have not been extinguished, including rights-of-way running 
through such allotments, where such allotments are located within a 
tribal land consolidation area approved by the Secretary or his 
authorized representative under 25 U.S.C. 2203.'' The settlement 
further provided that the proposed definition of Indian lands may 
address other issues arising from section 701 of SMCRA.
    The Secretary also agreed to propose rules to amend BIA's 
regulations at 25 CFR 200.11 to require the inclusion of SMCRA 
standards as terms and conditions in leases of coal on Indian lands. 
BIA intends to prepare that rulemaking as a separate proposal that will 
be published for public comment in a future Federal Register notice.
    The Secretary further agreed that either or both of the plaintiffs 
may challenge any rule promulgated pursuant to the settlement that 
differs substantially from the terms set forth in the agreement. Any 
party with standing may challenge such a rule under the Administrative 
Procedure Act (5 U.S.C. 551, et seq.), and nothing in this notice or in 
the settlement agreement predetermines the outcome of this rulemaking.

III. Discussion of Proposed Rule

A. Part 700: General

1. Proposed Clarification of Definition of Indian Lands
    The term ``Indian lands'' is currently defined at 30 CFR 700.5 as:

all lands, including mineral interests, within the exterior 
boundaries of any Federal Indian reservation, notwithstanding the 
issuance of any patent, and including rights-of-way, and all lands 
including mineral interests held in trust for or supervised by an 
Indian tribe.

    The regulatory definition at 30 CFR 700.5 mirrors the statutory 
definition at section 701(9) of SMCRA. OSM is proposing to replace the 
current definition of Indian lands with a revised version, which would 
read as follows:

    (a) All lands, including mineral interests, within the exterior 
boundaries of any Federal Indian reservation, notwithstanding the 
issuance of any patent or rights-of-way; and
    (b) All lands including mineral interests held in trust for or 
supervised by an Indian tribe. Such lands include, but are not 
limited to, all allotments held in trust by the Federal government 
for an individual Indian or Indians, the Indian titles to which have 
not been extinguished, including rights-of-way running through such 
allotments, where such allotments are located within a tribal land 
consolidation area approved by the Secretary or his authorized 
representative under 25 U.S.C. 2203.

    OSM believes that the revised two-part definition would more 
clearly distinguish between the two general types of lands that qualify 
as Indian lands under SMCRA, namely all lands within Federal Indian 
reservation boundaries and all lands held in trust for or supervised by 
an Indian tribe. Pursuant to the settlement agreement, OSM is further 
proposing to add clarifying rule language that Indian trust allotments 
located within a tribal land consolidation area approved by the 
Secretary fall within the category of lands held in trust for or 
supervised by an Indian tribe and therefore qualify as Indian lands 
under SMCRA.
2. Basis and Purpose for Proposed Clarification
    There are several possible bases for determining that allotted 
lands are ``Indian lands'' for purposes of SMCRA. Under the SMCRA 
definition of ``Indian lands,'' one possible basis would be a 
determination that a tribe supervises the lands. Another possible basis 
would be a two-part determination: first, that Congress intended the 
reference to lands ``supervised by'' an Indian tribe in the SMCRA 
definition of ``Indian lands'' to include those lands encompassed by 
the term ``Indian country;'' and second, a determination that allotted 
lands are Indian country. OSM has taken the position that Congress 
intended the phrase ``lands . . . supervised by'' an Indian tribe to 
include lands encompassed by ``Indian country.'' Valencia Energy Co., 
109 IBLA 59 (1989). These possible bases are discussed in more detail 
below.

Tribal Supervision

    Counsel for the Navajo Nation has suggested that there are several 
respects

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in which the tribe supervises allotted lands outside the reservation in 
the tribal land consolidation area. Examples of such tribal supervision 
may include, but are not necessarily limited to, the exercise of 
grazing supervision on allotted lands and tribal implementation of 
certain Federal environmental statutory provisions on allotted lands. 
The Navajo Nation has been approved for treatment as a state for 
purposes of implementing the underground injection control program 
under the Safe Drinking Water Act. That approval extends to all Navajo 
allotted lands. EPA review is pending on a Navajo Nation application 
for public water system supervision under the Safe Drinking Water Act.
    The Navajo Nation may also assert authority to tax certain 
activities on Navajo allotted lands. Counsel for the tribe has 
suggested that Navajo authority to tax may support a conclusion that 
the tribe supervises the allotted lands. OSM requests comments as to 
whether, and in what specific respects, the Navajo Nation supervises 
the Navajo allotments in the tribal land consolidation area.

Indian Country

    In the Valencia case, which addressed whether certain lands were 
Indian lands for purposes of SMCRA, OSM referred to the legislative 
history of the Land Use Policy Planning and Assistance Act of 1973 
(LUPA), another Federal bill considered by Congress at the same time 
the definition of ``Indian lands'' was first included in SMCRA. LUPA 
contained a similar definition of ``Indian lands''. OSM quoted from the 
legislative history of LUPA, which stated that Congress intended the 
phrase ``supervised by an Indian tribe'' to cover

lands which are Indian country for all practical purposes but which 
do not enjoy reservation status. The Committee recognizes that 
Indian tribal land use planning processes and programs would be 
largely meaningless if the tribes could not control key tracts 
within their reservations which they did not own or lands outside a 
reservation which they own or for which they possessed 
administrative responsibility.

    S. Rep. No. 197, 93d Cong., 1st Sess. 127 (1973). OSM concluded in 
that case that Congress must have intended the same term and almost 
identical definition in SMCRA to have the same interpretation discussed 
in the Committee report on LUPA. (Therefore, OSM concluded in Valencia 
that lands owned by an Indian tribe are ``Indian lands'' within the 
purview of the SMCRA definition at section 701(9)). The IBLA affirmed 
OSM's analysis. 109 IBLA 60.
    In a recent U.S. Supreme Court decision, Alaska v. Venetie, 118 
S.Ct. 948 (1998), the court concluded that, for purposes of both 
federal civil and criminal jurisdiction, ``Indian country'' means (a) 
all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government . . . , (b) all dependent 
Indian communities within the borders of the United States . . . , and 
(c) all Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same.'' 118 
S.Ct. 948, 952 (citations omitted). See also 18 U.S.C. section 1151; 
DeCoteau v. District County Court for Tenth Judicial District, 420 U.S. 
425, 427, n. 2(1975).2. Under this standard, Indian allotments would be 
``Indian country.'' And if Congress did intend ``Indian country'' to be 
included in lands ``supervised by an Indian tribe,'' then allotments 
would also be ``supervised by an Indian tribe,'' and therefore would be 
included in the SMCRA definition of ``Indian lands.''
    OSM notes that there was a challenge by the State of New Mexico to 
the 1984 regulations establishing the Federal program for Indian lands 
at 30 CFR Part 750. As one of the steps taken in settlement of that 
litigation, OSM agreed to issue a clarification of the 1984 regulatory 
preamble in which the Department disclaimed any assertion that all 
individual allotments outside of the exterior boundaries of an Indian 
reservation were ``Indian lands'' within the contemplation of SMCRA. 
OSM has taken the position that whether or not any specific Indian 
allotment is within the ``Indian lands'' definition of SMCRA depends on 
whether the allotment can be deemed to be ``held in trust for or 
supervised by an Indian tribe.'' See 53 FR 3993 (February 10, 1988); 
109 IBLA 68, fn 5.
    OSM requests comment as to these and any other specific bases for 
determining that the allotted lands in the Navajo land consolidation 
area are ``Indian lands'' for purposes of SMCRA.
3. Navajo Land Consolidation Area

Navajo Land Consolidation Plan

    For purposes of this rulemaking, the tribal land consolidation area 
cited in the settlement agreement and in this proposed rule refers to a 
large expanse of land that was established by the Navajo Nation by 
tribal resolution to provide the tribe with the additional authority to 
consolidate and augment the Navajo land base in accordance with the 
Indian Land Consolidation Act, 25 U.S.C. 2201 et seq. The area is 
described in the Navajo Land Consolidation Plan that was adopted by the 
Navajo Nation pursuant to Navajo Tribal Council Resolution No. CMY-23-
80 entitled ``Approving the Navajo Land Consolidation Act of 1988,'' as 
amended by Resolution No. CO-43-88 entitled ``Approving Amendments to 
the Navajo Land Consolidation Plan.'' The two resolutions, and 
accompanying attachments and exhibits, were passed by the Navajo Tribal 
Council on May 4 and October 25, 1988, respectively. The Navajo Land 
Consolidation Plan was subsequently approved in January 1989 by the 
BIA's Navajo Area Office in accordance with delegated authority from 
the Secretary of the Interior.
    As described in the approved consolidation plan, the land 
acquisition and consolidation area ``includes all lands, including 
federally administered and public domain lands, within: (1) the 
boundaries of the Navajo Reservation; (2) Navajo `Indian country' as 
defined by 18 U.S.C. Sec. 1151; (3) the aboriginal land area of the 
Navajo Tribe of Indians, as established by the Indian Claims 
Commission; (4) the counties of McKinley, San Juan, Sandoval, Cibola, 
Bernalillo, Socorro, and Valencia in the State of New Mexico; and (5) 
such other lands designated on the map attached hereto (to the 
consolidation plan) as Figure `A'.'' The consolidation plan further 
states that ``any land consolidation plans previously approved by the 
Bureau of Indian Affairs for the satellite Reservations of Alamo, 
Canoncito, and Ramah shall be deemed to be incorporated herein, and may 
be amended by the Navajo Tribal Council or its duly authorized 
Committee.''

Navajo Aboriginal Area and Indian Claims Commission Litigation

    Figure A, the map referenced in the approved consolidation plan, 
does not clearly delineate the outer boundary of the Navajo 
consolidation area and therefore could not be readily used by OSM as a 
basis for determining the location and extent of coal-bearing 
allotments located within the approved area. Such a determination was 
necessary in order for OSM to assess the potential geographic scope of 
the proposed rule.
    In lieu of Figure A, OSM requested from the Navajo Nation a more 
precise depiction of the consolidation area. In response, the Navajo 
Nation prepared and provided to OSM a detailed large-scale map dated 
December 13, 1996, entitled ``Aboriginal Boundary of the Navajo Indian 
Reservation.'' OSM then requested additional information and 
clarification from the tribe concerning the history and origin of the 
aboriginal

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boundary depicted on the map because it is this boundary line which 
largely defines the perimeter of the Navajo consolidation area. The 
Navajo Nation responded with a letter dated July 14, 1997, providing 
explanatory information concerning the aboriginal boundary and 
enclosing a second map dated January 29, 1997.
    The January 29 map provided by the Navajo Nation was prepared by 
the Navajo Land Department and is, for the most part, identical to the 
earlier December 13 map. It depicts land status and land ownership 
information in the general vicinity of the Navajo consolidation area, 
as well as the location of more than eighty Navajo sacred places. As 
the Navajo Nation explained in its July 14 letter, both ``the Navajo 
Land Consolidation Act map (Figure A) and the January 29 map are 
derived from an original map that was created for litigation purposes 
in Navajo Land Claims litigation in the 1950s.''
    The litigation cited in the Navajo Nation's July 14 letter is a 
reference to the tribe's aboriginal land claim that was filed with the 
Indian Claims Commission on August 8, 1951. The commission was created 
on August 13, 1946, by an act of Congress to hear and resolve claims 
against the United States by any Indian tribe, band, or other 
identifiable group of American Indians. Although originally established 
for a ten-year period, the commission was subsequently granted a series 
of extensions by Congress and continued to exist through September 30, 
1978.
    It should be noted that the January 29 Navajo Land Department map 
depicts the aboriginal area recognized by the tribe, as well as a 
smaller tract of land, designated on the map as the ``Navajo Title 
Award Area,'' which represents the aboriginal area judicially 
established by the Indian Claims Commission. In explaining the basis 
for the larger area established by the tribe, the Navajo Nation's July 
14 letter states that ``the aboriginal boundary line appears to connect 
habitation sites of unknown Indians, which could be Navajo, but are not 
prototypical Navajo structures, or are unknown but Indian structures, 
or which are neither Anglo American or Spanish sites, as agreed by the 
expert witnesses'' of the Navajo Nation, various other tribes, and the 
Court of Claims. The tribe's letter goes on to describe the smaller 
judicially established aboriginal area as consisting of ``a combination 
of known Navajo prototypical habitation sites and sacred places joined 
together by a line approved for settlement of litigation concerning 
aboriginal land claims of the Navajo Nation in the Court of Claims in 
Docket 229.'' Docket 229 is a reference to the docket number assigned 
to the Navajo's claim before the Indian Claims Commission. The 
relevance of these two aboriginal areas to the Navajo consolidation 
area and to this rulemaking is explained below.
    The Indian Claims Commission issued its Findings of Fact and 
Opinion in the Navajo case on June 29, 1970. In ruling on the Navajo 
claim, the Indian Claims Commission concluded, in pertinent part, 
``that as of July 25, 1868, the effective date of the 1868 Navajo 
Treaty of cession, the plaintiff held aboriginal title to those lands 
described in Finding 17 herein (in the commission's Findings of Fact), 
except for those areas contained within any Spanish or Mexican grants 
or parts thereof falling within the boundaries of the lands so 
described; that the plaintiff ceded the above described aboriginal 
title lands to the United States under the 1868 Treaty, except for the 
area specifically reserved to the plaintiff under Article 2 of said 
Treaty; and that the plaintiff tribe did not have aboriginal title to 
the balance of the lands in suit here.'' 23 Ind. Cl. Comm. 275 (1970).
    Finding of Fact No. 17 sets forth a detailed metes and bounds 
description of the area to which the Navajo Nation held aboriginal 
title on July 25, 1868, as determined by the Indian Claims Commission. 
This so-called adjudicated or judicially established area corresponds 
to the ``Navajo Title Award Area'' depicted on the January 29 Navajo 
Land Department map and is also the third item listed in the Navajo 
Land Consolidation Plan. The perimeter of the adjudicated area, as 
shown on that map, connects a series of fifteen points which correspond 
to the various communities and geographic features cited in the 
commission's metes and bounds description. As noted earlier, this area 
is the smaller of the two aboriginal areas illustrated on the January 
29 map.

Consolidation Area Lands Affected by the Proposed Rule

    The Navajo land consolidation area is situated in northwestern New 
Mexico, northeastern Arizona, southwestern Colorado and southeastern 
Utah. The perimeter of the consolidation area consists of the outermost 
boundary line that is formed by superimposing the larger aboriginal 
area recognized by the Navajo Nation and the smaller adjudicated area 
established by the Indian Claims Commission and then expanding that 
line, as necessary, to fully encompass the seven New Mexico counties 
that are cited as the fourth item in the Navajo Land Consolidation 
Plan.
    The consolidation area includes both Federal Indian reservation 
lands and off-reservation lands. The Federal Indian reservation portion 
of the consolidation area, for purposes of the Navajo Land 
Consolidation Plan, consists of all lands within the boundaries of the 
Navajo Indian Reservation and the satellite reservations of Alamo 
Navajo, Canoncito, and Ramah Navajo. All lands within the boundaries of 
Federal Indian reservations are Indian lands pursuant to SMCRA section 
701(9) and the implementing regulation at 30 CFR 700.5; their 
jurisdictional status, for purposes of SMCRA regulation, is not at 
issue. Therefore, this proposed rulemaking relates exclusively to the 
off-reservation portion of the Navajo consolidation area and, more 
specifically, to individual Indian trust allotments situated within 
that portion of the consolidation area.
    A map of the consolidation area was prepared by OSM and BIA in the 
course of developing this proposed rule. It duplicates on a smaller 
scale the relevant data from the January 29 Navajo Land Department map, 
including the boundaries of the two aboriginal areas depicted on that 
map. It also illustrates major highways, cities and towns; the various 
counties that are cited in the Navajo consolidation plan or are 
otherwise referenced in this preamble; the location of Federal Indian 
reservations and pueblos situated partially or completely within the 
consolidation area; and the general location of the McKinley Mine, an 
existing surface coal mine whose relevance to this rulemaking will be 
discussed later in this preamble. Copies of the consolidation area map 
are available, upon request, by contacting the person specified earlier 
under FOR FURTHER INFORMATION CONTACT.
4. Surface and Mineral Ownership of Individual Indian Trust Allotments 
Within the Navajo Land Consolidation Area
    An individual Indian trust allotment, whether located within or 
outside the exterior boundaries of a Federal Indian reservation, is 
allotted to an individual member of an Indian tribe. Each of the trust 
allotments located within the Navajo land consolidation area was 
originally allotted to an individual member of the Navajo Nation, but 
nearly all are now in multiple ownership because of inheritance. The 
majority of the trust allotments consist of 160-acre parcels of land 
(one-quarter of a 640-acre section), with some variations in size due 
to survey corrections resulting from the curvature of the earth or for

[[Page 8468]]

reasons such as conformity to geographic features (e.g. rivers) or 
governmental boundary lines. Additionally, a small number of allotments 
may be either larger or smaller than 160 acres due to differences in 
the statutory provisions governing the allotment process, or through 
partition or sales by the Indian owners.
    The surface rights to the Navajo trust allotments located within 
the consolidation area are held by the Indian owners, while the coal, 
oil and gas, and other mineral rights were generally reserved for the 
Federal government at the time of allotment. Under the terms of the 
settlement agreement approved on January 28, 1997, in Bertha Mescal v. 
United States of America, No. CIV 83-1408 LH/WWD (D.N.M.), the Federal 
government agreed to convey the reserved subsurface minerals underlying 
Navajo allotments in New Mexico to the plaintiff allottee owners of the 
surface rights. As defined in the settlement, the plaintiffs included 
``all Navajo Indians who hold beneficial title to any interest in 
allotment land in New Mexico where the allotment trust patent recites 
that the United States has a reserved mineral interest * * *'' The 
Mescal agreement settled a long-standing class action lawsuit in which 
the plaintiff Navajo allottees sought a declaration of beneficial title 
to minerals on or underlying the surface of their respective 
allotments.
    The McKinley Mine, an existing surface coal mine mentioned earlier 
in this preamble, includes four Federal coal leases within its approved 
permit area. The Mescal agreement contains certain provisions 
concerning those leases and the overlying Navajo allotments. 
Specifically, the agreement provides that the Bureau of Land Management 
(BLM) will issue supplemental trust patents for the 46 McKinley 
allotments (45 of which are presently included within the McKinley Mine 
permit area) within six months of the expiration, relinquishment or 
other termination of the ``Federal Leases'' and that, until such 
patents are issued, the United States will retain ownership of the 
reserved minerals. The Bureau of Land Management is the bureau within 
the Department of the Interior responsible for, among other things, the 
leasing and supervision of operations involving Federal onshore mineral 
resources. The term ``Federal Leases'' includes the four McKinley coal 
leases and certain Federal oil and gas leases.
    The Mescal settlement further provides that the ``Federal Leases 
will continue to be administered solely under federal regulations 
applicable to mineral leases issued under the MLA (Mineral Leasing 
Act)'' during the term of the leases. The Mineral Leasing Act of 1920, 
as amended, is the Federal statute that largely governs the leasing and 
development of certain Federal mineral resources, including coal and 
onshore oil and gas. The relevance of these Mescal settlement 
provisions to this rulemaking and to SMCRA regulation at the McKinley 
Mine will be discussed somewhat later in this preamble.

(Mescal also provides that BLM will regulate certain potential 
future Indian mineral leases, collectively referred to in the 
agreement as the ``Settlement Leases,'' under the regulations 
applicable to Federal mineral leases issued under the MLA. Those 
leases would involve both coal, and oil and gas resources. As 
specified in Mescal, any such Settlement Leases for Indian coal 
could potentially involve up to a total of 28 individual Navajo 
allotments. The Department has not yet determined the appropriate 
measures for implementing the Mescal provisions concerning 
Settlement Leases. Therefore, the regulation of any such leases in 
light of Mescal is not addressed in this rulemaking.)
    With respect to revenues generated by the McKinley coal leases, the 
settlement provides that on and after July 1, 1998, and after approved 
counsel fees are satisfied, 50% of monies received under the terms of 
the McKinley leases will be distributed to the ``McKinley Fund'' for 
distribution to the allottees holding beneficial interests in the 
surface of the allotments. Prior to the Mescal agreement, the monies 
allocated to the McKinley Fund would have been deposited in the U.S. 
Treasury pursuant to Section 35 of the MLA (30 U.S.C. 191). (The other 
50% of the revenues generated by the McKinley coal leases will continue 
to be distributed to the State of New Mexico pursuant to Section 35 of 
the MLA.) The McKinley Fund includes all settlement funds derived from 
the McKinley coal leases and received by the Minerals Management 
Service (MMS) after July 1, 1998. MMS is the Department of the Interior 
bureau which, among other things, administers mineral revenues 
generated from Federal and Indian lands.
5. Coal-Bearing Allotments Within the Off-Reservation Portion of the 
Navajo Land Consolidation Area
    The off-reservation portion of the Navajo land consolidation area 
extends over parts of New Mexico, Arizona, Colorado and Utah. OSM and 
BIA have jointly determined that, of those four States, only New Mexico 
appears to contain coal-bearing Indian trust allotments. OSM and BIA 
made this determination after a detailed review and analysis of the 
available information on allotments and coal resources for the off-
reservation portion of the consolidation area. This information was 
obtained from several sources and publications.
    A computer-generated listing of some 3,640 Navajo allotments 
located within the Navajo land consolidation area in New Mexico was 
provided by BIA's Land Titles and Records Office in Albuquerque, New 
Mexico. That office maintains the official land records and title 
documents for Indian lands located under the jurisdiction of BIA's 
Albuquerque, Navajo and Phoenix Area Offices. The allotment data that 
was provided included the tract identification number for each 
allotment, as well as township, range and section information.
    OSM obtained coal resource data for part of the off-reservation 
portion of the consolidation area from a 1971 publication entitled 
Strippable Low-Sulfur Coal Resources of the San Juan Basin in New 
Mexico and Colorado (New Mexico Bureau of Mines & Mineral Resources, 
Memoir 25, 1971). The report was prepared by the New Mexico Bureau of 
Mines & Mineral Resources, with the assistance of the U.S. Bureau of 
Mines. As stated in the report summary, the study was conducted in 
order ``to determine the amount, location, quality and economic 
position of low-sulfur strippable coal in the San Juan Basin.'' The 
report appears to be the most comprehensive evaluation, to date, of 
known or potential coal resources within the basin, although the 
study's authors acknowledge that ``reserve estimates range in 
reliability from proven tonnages to speculation based on geologic 
inferences.''
    The New Mexico report classified coal reserves into two general 
categories: those consisting of beds three or more feet thick beneath 
10 to 150 feet of overburden, and those in beds five or more feet thick 
beneath 150 to 250 feet of overburden. Of particular significance to 
this rulemaking is a map included within the report entitled ``Fields 
and Areas of Strippable Low Sulfur Coal in San Juan Basin.'' That map 
depicts the boundaries of the various coal fields and coal areas 
located within the basin, with each such coal-bearing unit identified 
by name and relative stratigraphic position.
    Coal resource data for the remainder of the off-reservation portion 
of the consolidation area not covered in the New Mexico study was 
obtained from a 1996 U.S. Geological Survey (USGS) map entitled ``Coal 
Fields of the

[[Page 8469]]

Conterminous United States'' (U.S. Geological Survey Open-File Report 
96-92). Unlike the New Mexico report, which evaluated and selectively 
identified those areas within the San Juan Basin that could potentially 
be surface mined, the USGS map depicts all of the locations where coal 
is known to exist within the conterminous United States without regard 
to actual mining potential.
    Based on an analysis of the allotment and coal resource data 
described above, OSM and BIA have jointly determined that some 1,895 
Navajo allotments located within the Navajo land consolidation area lie 
partially or completely over surface minable coal. This figure 
represents 52% of the approximately 3,640 Navajo allotments that lie 
within the consolidation area. OSM and BIA made this determination 
using a variety of electronic mapping and Geographic Information System 
software to create a composite map depicting the location of some 3,500 
Navajo allotments relative to the coal fields and coal areas identified 
in the New Mexico report. The 3,500 allotments that were electronically 
plotted represent the subset of consolidation area allotments that fell 
within a certain proximity (0 to 40 miles) to the coal-bearing areas. A 
comparison of the allotment data with the 1996 USGS map indicated that 
no allotted lands appear to be located within the vicinity of the 
additional coal-bearing areas identified on that map. Copies of the map 
depicting the location and distribution of coal-bearing Navajo 
allotments located within the Navajo consolidation area are available, 
upon request, from the person specified earlier under FOR FURTHER 
INFORMATION CONTACT.
    The vast majority of the coal-bearing allotments are located within 
the borders of McKinley or San Juan Counties in New Mexico. All of the 
coal-bearing allotments lie within the San Juan Basin which is 
described in the New Mexico report as ``a major physiographic 
subdivision of the Colorado Plateau in northwestern New Mexico and 
southwestern Colorado'' containing three major coal-bearing zones. The 
report describes the areas of strippable coal as lying ``along the 
basin margins--mainly the western and southern--in roughly concentric 
belts of outcrop of coal-bearing strata.''
    As noted earlier, 45 individual Indian trust allotments in McKinley 
County are already either partially or completely included within the 
McKinley Mine permit area. There are currently no other surface coal 
mining operations within the Navajo consolidation area that include 
allotted lands within their existing permit boundaries. However, at 
least one previous mining proposal submitted to the New Mexico 
regulatory authority in the 1980's would have included a number of 
individual Indian allotments in McKinley County within its proposed 
permit area. A second proposed mine would have been immediately 
adjacent to such lands on its southern and eastern permit boundaries. 
The permit applications for those mines were subsequently withdrawn by 
the applicants. Another proposed mine involved the construction of a 
railroad corridor, a portion of which traverses a quarter section of 
allotted land. Although the mining proposal was later withdrawn by the 
applicant, the railroad corridor was completed in anticipation of 
eventual mining in the area.
    OSM and BIA did not attempt to determine the number of additional 
allotments, if any, that overlie or intersect areas where the potential 
for underground coal mining might reasonably exist. At this time, OSM 
and BIA are unaware of any published data that evaluates the coal 
resources of either the San Juan Basin or the Navajo consolidation area 
in terms of underground mining potential. Furthermore, OSM believes 
that speculation as to the likelihood, timing or extent of any future 
surface or underground coal mining on allotted lands within the 
consolidation area is beyond the scope of this rulemaking given the 
many complex economic, environmental and other variables that 
ultimately determine the feasibility of such mining proposals.
6. Surface Coal Mining Operations Within the Navajo Land Consolidation 
Area
    Presently, there are eight actively-producing surface coal mining 
operations (one of which includes a separately permitted coal 
preparation plant) situated within the Navajo land consolidation area. 
(The term ``surface coal mining operations'' is defined in SMCRA 
Sec. 701.28 to include specified aspects of both surface mining and 
underground mining.) Of those eight active mines, five are in New 
Mexico, two are in Arizona, and one is located in southwestern 
Colorado. There are also eight mines which have terminated coal 
production and are in various stages of reclamation. All of those mines 
are located in New Mexico. In addition, two SMCRA permits have been 
issued for a proposed surface coal mining operation that would lie in 
western New Mexico and would supply coal via railroad to a generating 
station in eastern Arizona. A State permit covers the mine and the New 
Mexico portion of the railroad, while an OSM permit has been issued for 
the Arizona portion of the railroad corridor. The State permit for that 
mine is currently the subject of a court challenge. In addition, the 
OSM permit is conditioned upon Federal approval of the mining plan for 
Federal coal in New Mexico. That mining plan has yet to be approved.
    None of the eight mines currently in reclamation, nor the proposed 
mine, involve allotted lands. Of the eight active mining operations, 
three mines (and the coal preparation plant associated with one of the 
mines) lie entirely on Navajo and Hopi reservation lands in Arizona and 
New Mexico, while three are located exclusively on off-reservation 
lands (two mines in New Mexico and the mine in Colorado). The two 
remaining mines, both in New Mexico, include reservation lands and off-
reservation lands. Of the five mines located partially or completely on 
off-reservation lands, only the McKinley Mine in New Mexico contains 
allotted lands within its approved permit boundaries. Hence, at this 
time, McKinley is the only mine whose jurisdictional and regulatory 
status would be affected by this proposed rule. SMCRA regulation at the 
McKinley Mine, and how it would be affected by this proposed rule, is 
discussed below.
7. SMCRA Regulation at the McKinley Mine
    The McKinley Mine is an 18,692-acre active surface coal mining 
operation owned and operated by the Pittsburg & Midway Coal Mining 
Company (P&M). The mine straddles the boundary of the Navajo Indian 
Reservation near the Arizona-New Mexico border. The portion of the 
permit area that lies within the boundaries of the Navajo reservation, 
as well as a parcel of adjacent off-reservation split-estate tribal fee 
lands, comprises the Indian lands portion of the mine and is 
collectively referred to as the ``North Area.'' The remainder of the 
mine, the so-called ``South Area,'' includes off-reservation State, 
private, Federal and allotted lands, all of which are presently 
classified as non-Indian lands.
    The Indian lands portion of the mine, or North Area, is regulated 
by OSM under the Federal program for Indian lands at 30 CFR Part 750. 
The North Area includes 7,019 acres of Navajo Reservation lands and 946 
acres of adjacent off-reservation tribal fee lands. As noted earlier, 
all lands within the exterior boundaries of Federal Indian reservations 
are Indian lands for purposes of SMCRA regulation. Surface

[[Page 8470]]

coal mining operations, or portions thereof, located on such lands are 
and will continue to be regulated by OSM, in consultation with the 
affected Indian tribes, the Bureau of Indian Affairs and, as 
applicable, the Bureau of Land Management, unless legislation is 
enacted, pursuant to Section 710 of SMCRA, to allow Indian tribes to 
assume SMCRA regulatory jurisdiction on Indian lands.
    The tribal fee lands on which OSM regulates are split-estate lands 
where the surface rights are owned by the Navajo Nation and the mineral 
rights are privately owned. Those lands were held to be Indian lands 
for purposes of SMCRA in two 1994 district court decisions. (Pittsburg 
& Midway Coal Mining Co. v. Babbitt, No. CIV 90-730 JC (D.N.M. Sept. 
13, 1994); and New Mexico v. Lujan, No. 89-758-M (D.N.M. Feb. 14, 
1994)). Those decisions upheld the Department's interpretation that 
lands located outside a Federal Indian reservation, the surface estate 
of which is owned by an Indian tribe and the mineral estate of which is 
privately owned, are Indian lands within the meaning of section 701(9) 
of SMCRA and thus are subject to OSM's regulatory jurisdiction. Prior 
to those rulings, the State of New Mexico also had asserted SMCRA 
regulatory jurisdiction on the tribal fee lands at the McKinley Mine.
    As noted earlier, all of the lands within the McKinley Mine South 
Area are presently classified as non-Indian lands for purposes of SMCRA 
and are regulated by the State of New Mexico. New Mexico is a primacy 
State, meaning that it has in place an approved SMCRA program for the 
regulation of surface coal mining and reclamation operations located on 
State and private lands within its borders. New Mexico also has in 
place a State-Federal cooperative agreement whereby the State regulates 
coal mining operations located on Federal lands within its borders. The 
New Mexico Mining and Minerals Division (MMD), located within the 
State's Energy, Minerals and Natural Resources Department, is the State 
regulatory authority.
    The McKinley Mine South Area is presently 10,727 acres in size and 
is composed of Federal, private, State, and allotted lands occurring in 
a complex checkerboard pattern. The surface ownership consists of 4,073 
acres of State, Federal and private lands, and 6,654 acres of allotted 
lands. The allotted lands include all or part of 45 individual Indian 
trust allotments, 42 of which overlie leased Federal coal and three of 
which overlie unleased Federal coal. As noted earlier in this preamble, 
all of the McKinley allotments are included in the Mescal settlement 
and, under the terms of that agreement, the McKinley allottees are to 
be issued supplemental trust patents within six months of the 
expiration, relinquishment, or other termination of the existing 
Federal coal leases. Until that time, the United States will retain 
ownership of the reserved minerals and the mining of the McKinley coal 
leases will continue to be subject to the Federal mining plan approval 
requirements of OSM's regulations at 30 CFR Chapter VII and BLM's 
regulations at 43 CFR Group 3400.
8. Transfer of SMCRA Regulatory Jurisdiction
    This proposed rulemaking to include within the definition of Indian 
lands all individual Indian trust allotments located within the Navajo 
land consolidation area would result in the transfer of SMCRA 
regulatory jurisdiction on such allotments from the State to OSM. The 
immediate effect of the rule change would be limited to the 6,654 acres 
of allotted lands included in the McKinley Mine South Area permit that 
are currently regulated by the New Mexico MMD. As of the effective date 
of the rule, OSM would assume SMCRA regulatory jurisdiction on those 
lands. OSM would also be the regulatory authority for any future 
surface coal mining operations, or portions thereof, located on 
individual Indian trust allotments lying within the off-reservation 
portion of the Navajo land consolidation area.
    OSM's assumption of regulatory jurisdiction on individual Indian 
trust allotments located within the Navajo consolidation area would 
include permitting, and inspection and enforcement (I&E) duties that 
are now performed by the State. As noted earlier, the McKinley Mine is 
already subject to joint OSM-State regulation because it includes both 
Indian lands and non-Indian lands within its approved permit 
boundaries. This dual regulatory situation makes it essential that OSM 
and the State closely coordinate their permitting and I&E activities 
for the McKinley Mine to ensure consistent and non-duplicative 
regulation. Should OSM assume jurisdiction on the allotted lands 
currently under State permit in the McKinley Mine South Area, the need 
for regulatory coordination between OSM and New Mexico MMD would be 
considerably greater given the checkerboard pattern in which the 45 
individual allotments occur within that area.
    This proposed rulemaking would also trigger certain changes in the 
consultation procedures for surface coal mining and reclamation 
operations whose permit areas include allotted lands within the Navajo 
consolidation area. Specifically, consultation with individual allottee 
surface and/or mineral owners would be required in relation to 
permitting and other regulatory actions under SMCRA involving such 
allottees' lands. For the McKinley Mine, OSM consults with the Navajo 
Nation, pursuant to 30 CFR 750.6(a)(4), concerning the protection of 
non-coal resources of the area affected by the mine. Should allotted 
lands come to be defined as Indian lands for purposes of SMCRA, as 
proposed in this rulemaking, consultation would take place with both 
the affected Navajo allottees and the Navajo Nation for the portion of 
the mine located on allotted lands. Any potential conflicts that might 
arise between the allottees and the tribe with respect to the conduct 
of surface coal mining operations on allotted lands would be dealt with 
on a case-by-case basis.
    OSM's regulations concerning consultation on Indian lands are 
contained in 30 CFR 750.6. A more detailed discussion of the 
consultation process, and how it would apply to allotted lands, can be 
found later in this preamble in conjunction with the discussion of 
OSM's proposed changes to those regulations.
9. Allocation of Abandoned Mine Land Fees and Title V Funding
    The change in jurisdiction on allotted lands that would result from 
this rulemaking would affect the allocation of abandoned mine land 
(AML) fees that are collected from coal mining operations on such 
lands. OSM collects such fees (35 cents per ton for surface coal mines; 
15 cents per ton for underground mining; and 10 cents per ton for 
lignite) pursuant to Title IV of SMCRA and the implementing 
regulations. The fees are used for eligible abandoned mine land 
reclamation projects and activities, or for construction of public 
facilities related to the coal or minerals industry. All of the AML 
fees are deposited in the U.S. Treasury for subsequent allocation to 
the so-called Federal share and the State or Tribal share. Fifty-
percent of the fees from coal produced from State and private lands 
within a State, or from coal produced from Indian lands, is allocated 
to the respective State or Tribal share for use, once appropriated, on 
eligible reclamation projects and activities. The other 50% is 
allocated to the Federal share for uses, once appropriated, that 
include Federal reclamation projects, additional State or

[[Page 8471]]

Tribal grants, the Small Operator Assistance Program, AML emergency 
programs, and Federal administrative expenses.
    As of the effective date of the rule change, the non-Federal share 
of AML fees derived from coal production on allotted lands within the 
Navajo land consolidation area would be allocated to the Navajo 
Nation's portion of the AML fund, rather than to New Mexico's portion 
of the fund. For the McKinley Mine, OSM estimates the total amount of 
AML fees derived from the four federal coal leases underlying the 
allotted lands portion of the permit area at $831,250 to $969,070 per 
year based upon 1997 and 1998 coal production levels. Thus, the 50% 
non-Federal share that would be redirected from the New Mexico State 
share to the Navajo Tribal share would range from $415,000 to $484,535 
per year based upon current production levels.
    The proposed rule could also affect the amount of annual funding 
that OSM provides to the State of New Mexico to support the 
implementation of its Title V regulatory program. OSM calculates the 
Title V grant amount according to a funding formula that includes, 
among other things, the total acreage that is subject to State 
regulatory jurisdiction. This proposed rulemaking would reduce the 
amount of land subject to State regulation, which could potentially 
result in a decrease the State's annual Title V regulatory funding. 
Based upon the Federal lands funding option that New Mexico has chosen, 
OSM anticipates that the reduction in grant funding would be 
approximately 4.15%.

B. 30 CFR Parts 740 and 746: General Requirements for Surface Coal 
Mining and Reclamation Operations on Federal Lands; Review and Approval 
of Mining Plans

    OSM's regulations governing surface coal mining and reclamation 
operations on Federal lands are contained in 30 CFR Subchapter D: Parts 
740, 745 and 746. Part 740 sets forth the general requirements for 
mining and reclamation operations on Federal lands. Part 745 sets forth 
requirements for the development, approval and administration of State-
Federal cooperative agreements under section 523(c) of SMCRA. Part 746 
specifies the process and requirements for review and approval, 
disapproval or conditional approval of mining plans on lands containing 
leased Federal coal. For purposes of this rulemaking, only Parts 740 
and 746 are proposed for revision for the reasons described below.
    The regulations at 30 CFR Subchapter D currently apply exclusively 
to ``Federal lands.'' The term Federal lands is defined, in pertinent 
part, at Section 700.5 as ``any land, including mineral interests, 
owned by the United States, without regard to how the United States 
acquired ownership of the lands or which agency manages the lands. It 
does not include Indian lands'' (emphasis added).
    This proposed rulemaking, together with the previously mentioned 
Mescal agreement, would create a situation where the allotted lands 
included within the McKinley Mine permit area would become Indian lands 
for purposes of SMCRA regulation, while the underlying coal would 
continue to be subject to the various requirements applicable to leased 
Federal coal under the MLA. Those requirements include statutory and 
regulatory provisions administered by BLM, as well as certain 
requirements administered by OSM. In OSM's regulations, provisions 
governing leased Federal coal can be found in the Federal lands program 
at 30 CFR Parts 740 and 746. Those requirements would continue to apply 
to the Federal coal leases at the McKinley Mine.
    OSM is proposing a series of revisions to the regulations at Parts 
740 and 746 that would recognize that responsibilities and requirements 
pertaining to leased Federal coal would continue to apply to Federal 
coal leases on Indian lands. Thus, in those instances where leased 
Federal coal underlies allotted lands, both the Indian lands program at 
Part 750 and the regulations at Parts 740 and 746 pertaining to leased 
Federal coal would apply. Specific proposed changes to Parts 740 and 
746 are discussed below.
1. Section 740.1: Scope and Purpose
    Section 740.1 currently states that Part 740 ``provides for the 
regulation of surface coal mining and reclamation operations on Federal 
lands.'' OSM is proposing to add rule language that would also 
recognize the applicability of Part 740 to the mining of leased Federal 
coal on Indian lands. This proposed change is meant to preclude any 
regulatory ambiguity that might arise concerning the continued 
applicability of the Federal lands program to leased Federal coal on 
allotted lands should those lands come to be defined as Indian lands.
2. Section 740.4: Responsibilities
    The regulations at 30 CFR 740.4(b)(1)-(5) specify OSM's regulatory 
responsibilities for surface coal mining and reclamation operations on 
Federal lands. OSM is proposing to amend Section 740.4(b) by adding a 
new provision at the end of that section concerning the regulation of 
surface coal mining and reclamation operations on Indian lands 
containing leased Federal coal. The proposed rule language would 
provide for OSM regulation on such lands in accordance with the 
requirements of the Indian lands program at Part 750 and the applicable 
requirements of the Federal lands program as specified in a new Section 
740.11(h) that is also being proposed as part of this rulemaking. 
(Section 740.11 currently consists of paragraphs (a)-(f). A new 
paragraph (g) has already been proposed in another rulemaking (62 FR 
4836, 4859; January 31, 1997). A new paragraph (h) is being proposed as 
part of this rulemaking and will be discussed somewhat later in this 
preamble.)

    3. Section 740.5: Definitions
Leased Federal Coal
    Section 740.5 currently defines ``leased Federal coal'' as ``coal 
leased by the United States pursuant to 43 CFR part 3400, except 
mineral interests in coal on Indian lands'' (emphasis added). As noted 
earlier, the four Federal coal leases underlying allotted lands at the 
McKinley Mine are to remain in effect pursuant to the Mescal settlement 
until their expiration, relinquishment, or other termination. Under 
this proposed rulemaking, those allotments would be classified as 
Indian lands for purposes of SMCRA regulation, thereby creating at 
least one instance in which leased Federal coal would be located on 
Indian lands. Therefore, OSM is proposing to amend the definition of 
leased Federal coal by removing the phrase ``except mineral interests 
in coal on Indian lands.'' OSM is also proposing to replace the current 
cross-reference to ``43 CFR part 3400'' in the definition with a 
reference to ``43 CFR Group 3400'' in order to fully and accurately 
cite BLM's coal management regulations at 43 CFR Subchapter C. Those 
regulations consist of nine parts, and various subparts, all of which 
come under the general heading of ``Group 3400--Coal Management.''
Permit Application Package
    The term ``permit application package'' is defined at Section 740.5 
as:

a proposal to conduct surface coal mining and reclamation operations 
on Federal lands, including an application for a permit, permit 
revision or permit renewal, all the information required by the Act, 
this subchapter, the applicable State program, any applicable 
cooperative agreement and all other applicable laws and regulations 
including, with respect to leased Federal coal, the Mineral Leasing 
Act and its implementing regulations (emphasis added).


[[Page 8472]]


    For the reasons noted above under the preamble discussion of leased 
Federal coal, and elsewhere in this preamble, OSM is proposing to amend 
the definition of permit application package so that it includes mining 
proposals on Federal lands and on Indian lands containing leased 
Federal coal. OSM is also proposing to replace the reference to the 
applicable ``State program'' with applicable ``regulatory program.'' 
The proposed rule language would bring the definition into conformity 
with the other changes to the Federal and Indian lands programs being 
proposed in this rulemaking. For clarity, OSM is also proposing a non-
substantive change in which the various information requirements 
specified in the definition are grouped and listed in itemized form.
4. Section 740.11: Applicability
    The regulations at 30 CFR 740.11(a)-(f) specify when and to what 
extent the Federal lands program applies to coal exploration and 
surface coal mining and reclamation operations on Federal lands in 
States with approved regulatory programs, with and without cooperative 
agreements, and in other situations. OSM is proposing to add a new 
paragraph at the end of Section 740.11 that would pertain specifically 
to surface coal mining and reclamation operations on Indian lands 
containing leased Federal coal. The proposed provision would specify 
the applicable regulatory requirements for mining operations on such 
lands, namely the Indian lands program at 30 CFR Part 750, the relevant 
provisions of Part 740, and Part 746. The various sections of Part 740 
that are proposed for inclusion in the list of applicable provisions 
are those that either specify or reference requirements pertaining to 
leased Federal coal, or are permitting requirements that have no 
equivalent counterpart in the Indian lands program at Part 750. Part 
746 is proposed for inclusion in its entirety because all of its 
provisions, namely the process and requirements for the review and 
approval of mining plans and mining plan modifications, apply to leased 
Federal coal. The proposed provision would be designated as paragraph 
(g) and would read as follows:

    Where surface coal mining and reclamation operations are on 
Indian lands, as the term Indian lands is defined at Sec. 700.5, and 
the lands include leased Federal coal, the Indian lands program at 
part 750 and the following provisions of this subchapter apply:

(1) Section 740.1;
(2) Sections 740.4(a)(1), (b)(1), (b)(6), (d)(1)-(5) and (d)(9);
(3) Section 740.5;
(4) Section 740.11(d);
(5) Sections 740.13(a)(1)-(2), (c)(1)-(3) and (d)(2);
(6) Sections 740.15(a) and (d)(1);
(7) Sections 740.19(a)(1)-(2) and (b)(2); and
(8) Part 746

    The proposed rule language would recognize the Indian lands program 
as the applicable regulatory program for purposes of SMCRA compliance 
on Indian lands containing leased Federal coal, while also identifying 
the Federal lands program requirements that must be met to ensure that 
the mining of Federal coal on such lands is carried out in accordance 
with the Mineral Leasing Act, as amended, and other applicable statutes 
governing leased Federal coal.
5. Section 746.13: Decision Document and Recommendation on Mining Plan
    The regulations at Section 746.13 specify the requirements that OSM 
must meet in preparing and submitting to the Secretary a decision 
document recommending approval, disapproval or conditional approval of 
the mining plan for leased Federal coal. Section 746.13(f) requires the 
mining plan recommendation to reflect the ``findings and 
recommendations of the regulatory authority with respect to the permit 
application and the State program.'' As discussed earlier in this 
preamble, Indian lands containing leased Federal coal would not be 
subject to the requirements of the State program, but would instead be 
regulated under the provisions of the Indian lands program at 30 CFR 
Part 750. Therefore, OSM is proposing to replace the reference to the 
State program in Section 746.13(f) with ``applicable regulatory 
program'' in order to provide the necessary flexibility in the rule 
language.

C. 30 CFR Part 750: Requirements for Surface Coal Mining and 
Reclamation Operations on Indian Lands

    The regulations at 30 CFR Part 750 govern surface coal mining and 
reclamation operations on Indian lands and comprise the Federal program 
for Indian lands. OSM is proposing to amend the Indian lands program to 
the extent necessary to address the regulatory and jurisdictional 
issues arising from the proposed clarification of the definition of 
Indian lands and to avoid confusion in implementation of the Mescal 
settlement as it relates to the mining of leased Federal coal on 
allotted lands. The proposed revisions are intended to clarify the 
regulatory requirements and consultation procedures that would apply to 
surface coal mining and reclamation operations involving allotted 
lands, including such lands containing leased Federal coal, and to 
ensure the continuing and uninterrupted regulation of mining operations 
that presently include such lands.
1. Section 750.6: Responsibilities
Regulation of Leased Federal Coal on Indian Lands
    The regulations at 30 CFR 750.6(a)-(d) set forth the regulatory 
responsibilities of OSM, BLM, MMS and BIA, respectively, on Indian 
lands, including the required consultation and interagency coordination 
procedures. BLM's responsibilities concerning coal exploration and 
mining operations are specified at Section 750.6(b)(1)-(4). Section 
750.6(b)(1) concerns BLM's responsibility to review and approve, 
conditionally approve, or disapprove coal exploration and mining plans 
on Indian lands as provided in BIA's regulations at 25 CFR Chapter I or 
in specific Indian mineral agreements. OSM is proposing rule language 
that would also recognize BLM's continuing responsibility to administer 
the Mineral Leasing Act, as amended, and other applicable statutes, 
with respect to coal mining, production and resource recovery and 
protection operations on Federal coal leases and licenses, regardless 
of surface ownership, as provided in 43 CFR Chapter II, Group 3400. 
This would include the Federal coal underlying the individual Indian 
trust allotments included within the McKinley Mine permit area. The 
proposed amendment is not intended to make any substantive change, but 
rather to recognize that BLM's existing jurisdiction under the MLA and 
other laws governing Federal coal resources would not be affected by 
the proposed rule. The proposed provision would be designated as 30 CFR 
750.6(b)(2), and the subsequent paragraphs in Section 750.6(b) would be 
renumbered accordingly.
Consultation and Coordination on Allotted Lands
    The regulations at Section 750.6(d) specify BIA's consultation 
responsibilities with respect to surface coal mining and reclamation 
operations on Indian lands. Section 750.6(d)(1) requires BIA to consult 
directly with and provide representation for Indian mineral owners and 
other Indian land owners in matters relating to surface coal mining and 
reclamation operations on Indian lands. The term ``Indian mineral 
owner'' is defined at Section 750.5 to include both individual Indians 
and Indian tribes who own land or mineral interests in land the title 
to which is held in trust by the United States or is subject to a 
restriction

[[Page 8473]]

against alienation imposed by the United States. Thus, the definition 
would encompass individual Indian allottees. In addition, Section 
750.6(d)(2) provides that, after consultation with the affected tribe, 
BIA is responsible for reviewing and making recommendations to OSM 
concerning permit applications, renewals, revisions or transfers of 
permits, permit rights or performance bonds.
    As noted earlier in this preamble, one of the consequences of this 
proposed clarification to the definition of Indian lands would be a 
change in the consultation procedures for surface coal mining and 
reclamation operations involving allotted lands located within the 
Navajo consolidation area. Specifically, consultation with individual 
allottee surface and/or mineral owners would be required when mining 
and reclamation activities involve such allottees' lands. Such 
consultation would be appropriately carried out by BIA pursuant to 30 
CFR 750.6(d)(1).
    Because allotted lands within the Navajo land consolidation area 
could potentially contain non-coal resources of significance to the 
tribe, OSM would consult with the Navajo Nation as appropriate to 
ensure that any such resources are identified and the tribe's interests 
and concerns addressed. OSM would carry out such consultation with the 
tribe pursuant to 30 CFR 750.6(a)(4). That regulation requires OSM to 
consult with the BIA and the affected tribe with respect to special 
requirements relating to the protection of non-coal resources of the 
area affected by surface coal mining and reclamation operations, and to 
assure operator compliance with such requirements.
    As noted above, Section 750.6(d)(2) calls for BIA consultation with 
the affected tribe in reviewing and making recommendations to OSM 
concerning permit applications and other types of permitting actions, 
and performance bonds. However, that requirement is properly applied to 
lands held in trust for an Indian tribe; on allotted lands, where both 
the land (surface and/or mineral) ownership interest and the Federal 
trust relationship is with the individual allottees, BIA's 
responsibility to consult lies with the allottee land owners. Any 
tribal concerns related to mining operations on allotted lands would be 
addressed through OSM's consultation with the tribe in its capacity as 
the SMCRA regulatory authority on Indian lands.
    The rule language at Section 750.6(d)(2) refers only to BIA's 
responsibility to consult with the affected tribe, and thus differs 
from Section 750.6(d)(1) which refers to BIA's responsibility to also 
consult with individual Indian mineral owners or other Indian land 
owners, as appropriate. Section 750.6(d)(2) is also inconsistent with 
this proposed rulemaking which calls for BIA to consult with Indian 
allottees when permitting actions for surface coal mining and 
reclamation operations involve allotted lands. Therefore, OSM is 
proposing to amend Section 750.6(d)(2) to refer to BIA's responsibility 
to consult with the affected tribe, Indian mineral owners, or other 
Indian land owners, as appropriate, prior to making recommendations to 
OSM concerning permit applications and performance bonds.
    Section 750.6(d)(3) addresses BIA's responsibility to consult with 
the affected Indian tribe in reviewing mining plans and making 
recommendations to the Bureau of Land Management pursuant to BIA's 
regulations at 25 CFR 216.7. The regulations at 25 CFR Part 216 govern 
surface exploration, mining, and reclamation on Indian lands. The term 
``mining plan,'' as used in those regulations, pertains specifically to 
Indian lands. It should not be confused with a mining plan for leased 
Federal coal, as used in OSM's Federal lands regulations at 30 CFR 
Parts 740 and 746, which is subject to a different set of statutory and 
regulatory requirements including the Mineral Leasing Act, as amended, 
and other applicable laws. Pursuant to 25 CFR 216.2, the regulations at 
Part 216 do not apply where minerals underlie lands ``the surface of 
which is not owned by the owner of the minerals.'' Prior to the Mescal 
settlement, the mineral estate for the vast majority of individual 
Indian trust allotments located within the Navajo consolidation area 
was federally owned, while the surface estate was owned by the 
allottees. However, with the issuance of supplemental trust patents to 
individual Indian allottees under the Mescal agreement, there is now 
the potential for surface coal mining operations, and associated mining 
plans, involving allottee-owned coal in the future. Therefore, OSM is 
proposing to amend the rule language at 30 CFR 750.6(d)(3) to specify 
BIA consultation with the affected tribe, Indian mineral owners, or 
other Indian land owners, as appropriate, in reviewing and making 
recommendations on mining plans on Indian lands.
2. Section 750.12: Permit Applications
Transfer of SMCRA Regulatory Jurisdiction on Allotted Lands
    The regulations at 30 CFR 750.12 specify the applicable content and 
processing requirements for permit applications for surface coal mining 
operations on Indian lands. Under Section 750.12(c)(1), Part 774 
applies to the processing of permit applications on Indian lands. This 
part specifies the requirements for permit revisions, permit renewals, 
and transfer, assignment or sale of permit rights. Under Section 
774.11(b), the regulatory authority may, at any time, require 
reasonable revision of a permit to ensure compliance with the Act and 
the regulatory program.
    OSM anticipates that the change in regulatory jurisdiction on 
allotted lands that would occur under this proposed rule would require 
us to invoke this provision at the McKinley Mine. Those lands are 
currently regulated under a State program permit issued by the New 
Mexico MMD, but would come under the purview of the Federal program for 
Indian lands as of the effective date of the rule change. Consequently, 
P&M would be required to submit to OSM a permit revision application 
incorporating the allotted lands portion of the mine into its Indian 
lands permit under the procedures described below.
    Upon issuance of the final rule, OSM would send written 
notification to P&M, the Navajo Nation, New Mexico MMD, the Bureau of 
Indian Affairs, and the Bureau of Land Management of the imminent 
change in regulatory jurisdiction. The notification would advise P&M of 
the need to submit for OSM review a permit revision application 
incorporating the allotted lands currently under State permit at the 
McKinley Mine into its existing Federal permit. OSM would then review 
the application to determine whether any changes are necessary to bring 
the permit into compliance with the Federal program for Indian lands. 
If OSM determines that changes are necessary, the procedures of 30 CFR 
750.12(c)(3)(ii) governing permit revisions on Indian lands would 
apply.
    OSM invites comments on this proposed transition procedure, and is 
particularly interested in suggestions on how to minimize disruption to 
mine operations and the regulatory process during any transfer of 
jurisdiction. In addition, OSM is seeking comment on whether this 
procedure would require further changes to our regulations to include a 
provision analogous to 30 CFR 773.11(d)(1) which allows for continued 
operations under State program permits

[[Page 8474]]

when a Federal regulatory program supersedes an approved State program.
Indian Lands Containing Leased Federal Coal
    OSM is proposing to amend Section 750.12(c) by adding a new 
paragraph pertaining specifically to Indian lands containing leased 
Federal coal. The proposed provision would reference the list of 
applicable regulatory requirements for such lands that OSM is proposing 
to include in the Federal lands program at 30 CFR 740.11(h) as part of 
this rulemaking. The proposed cross-reference to Section 740.11(h) 
would be designated as Section 750.12(c)(3), and the existing 
regulations at Section 750.12(c)(3) would be redesignated as Section 
750.12(c)(4).
    OSM is also proposing a change in the rule language at existing 
Section 750.12(c)(3)(i)(which would be redesignated as Section 
750.12(c)(4)(i) under this proposed rulemaking). The regulations at 
Section 750.12(c)(3) prescribe special requirements for surface coal 
mining and reclamation operations on Indian lands. Section 
750.12(c)(3)(i) concerns the transfer or assignment of leasehold 
interests on Indian lands and specifies that such transfers or 
assignments may be done ``only in accordance with 25 CFR parts 211 and 
212.'' The regulations at 25 CFR Parts 211 and 212 govern leases for 
the development of, respectively, Indian tribal and individual Indian 
oil and gas, geothermal, and solid mineral resources. Thus, those 
regulations would not apply to Federal coal leases on Indian lands, 
including the four Federal coal leases underlying the allotted lands at 
the McKinley Mine. For Federal coal leases, any transfer or assignment 
of leasehold interests may be done only in accordance with BLM's 
regulations at 43 CFR Part 3453. Therefore, OSM is proposing to amend 
the rule language at what would be the newly designated Section 
750.12(c)(4)(i) to reference 25 CFR Parts 211 and 212, as well as 43 
CFR Part 3453, as applicable.

IV. Procedural Determinations

A. Executive Order 12866--Regulatory Planning and Review

    This document is not a significant rule and is not subject to 
review by the Office of Management and Budget under Executive Order 
12866.
    1. This rule will not have an effect of $100 million or more on the 
economy. It will not adversely affect in a material way the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or Tribal governments or communities. The only 
geographic region where an economic impact would likely occur under the 
rule would be at the McKinley Mine in New Mexico. The direct and 
indirect economic impacts to the mine from the transfer of jurisdiction 
to OSM would extend only to the actual costs associated with submitting 
a permit revision application for those allotted lands that are 
currently regulated by the State of New Mexico. The cost would be 
extremely small in comparison to the size of the mine. The economic 
impacts of the rule with regard to AML fees were previously discussed 
in the preamble in section III.9.
    2. This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    3. This rule does not alter user fees or loan programs or the 
rights or obligations of their recipients. This rule would alter the 
allocation of AML fees that are collected from coal mining operations 
that include individual Indian trust allotments within their approved 
permit areas and are located within the Navajo Land Consolidation Area 
in New Mexico. Specifically, as of the effective date of the rule 
change, the 50% non-Federal share of AML fees derived from coal 
production on allotted lands within the consolidation area would be 
allocated to the Navajo Nation's portion of the AML fund, rather than 
to the State of New Mexico's portion of the fund. Only one mine in New 
Mexico would be affected by the rule at this time. Based upon current 
coal production figures at that mine, the amount of affected AML fees 
would be less than $500,000,000 annually. The rule could also affect 
the amount of annual grant monies that OSM provides to the State of New 
Mexico to support implementation of its SMCRA regulatory program 
because it would reduce the amount of land subject to State regulation, 
which could potentially decrease the State's annual regulatory funding. 
OSM anticipates that the reduction in grant monies would be about 4.15% 
of the State's yearly grant allocation.
    4. The legal and policy issues raised in this rule are an expansion 
of issues previously raised during the implementation of SMCRA. The 
proposed rule asserts for the first time that specified allotted lands 
would be deemed to be Indian Lands. The State of New Mexico challenged 
OSM's 1984 regulations establishing the Federal program for Indian 
lands at 30 CFR Part 750. In response to that challenge, OSM agreed to 
issue a clarification of its 1984 regulatory preamble and disclaim any 
assertion that all individual allotments outside the boundaries of an 
Indian reservation were ``Indian lands'' for the purpose of SMCRA. See 
Valencia Energy Co., 109 IBLA 59 (1989); and 53 FR 3992, 2993 (February 
10, 1988). OSM has subsequently taken the position that this meant that 
OSM would address on a case-by-case basis whether allotments are 
``Indian Lands.''

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
This certification is based on the findings that the regulatory 
additions in the rule will not change costs to industry or to the 
Federal, State, or local governments. Furthermore, the rule produces no 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of United States enterprises to compete with 
foreign-based enterprises in domestic or export markets. As previously 
discussed, the proposed rule would have an economic impact on only one 
coal mine and one Indian Tribe.

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    1. Does not have an annual effect on the economy of $100 million or 
more. The only geographic region where an economic impact will likely 
occur under the proposed rule would be in the vicinity of the McKinley 
Mine in New Mexico. More specifically, the Indian trust allotments 
(6,654 acres) in the McKinley Mine South Area permit would be deemed as 
Indian lands rather than private or Federal lands under the proposed 
rule and SMCRA regulatory jurisdiction on those lands would be 
transferred from the State of New Mexico to OSM as of the effective 
date of the proposed rule. OSM's regulatory jurisdiction on such lands 
would include the permitting, inspection and enforcement functions 
which are now performed by the State of New Mexico.
    Currently, the McKinley Mine is owned and operated by Pittsburg & 
Midway. The direct or indirect economic impacts to P&M from the 
transfer of jurisdiction to OSM would extend only to the actual costs 
associated with submitting a permit revision application for those 
allotted lands that are now regulated by the

[[Page 8475]]

State of New Mexico. In addition, the productivity or employment in the 
local economy would not be affected solely due to the change of 
regulatory authority from State government to the Federal government. 
The proposed rule could potentially affect the amount of annual funding 
that OSM provides to the State of New Mexico to support the 
implementation of the State's Title V regulatory program under SMCRA. 
In determining the Title V grant amount, OSM uses a funding formula 
that includes, among other things, the total acreage that is subject to 
State regulatory jurisdiction. The proposed rulemaking would reduce the 
amount of land subject to State regulation, which could potentially 
result in a decrease in the State's annual Title V regulatory funding. 
Based upon the Federal lands funding option that New Mexico has chosen, 
OSM anticipates that the reduction in annual funding could be 
approximately 4.15 percent.
    2. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions for the reasons previously stated.
    3. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises for 
the reasons stated above.

D. Unfunded Mandates

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
or local governments or the private sector. A statement containing the 
information required by the Unfunded Mandates Reform Act (1 U.S.C. 
1531, et seq.) is not required.

E. Executive Order 12630--Takings

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications.

F. Executive Order 12612--Federalism

    In accordance with Executive Order 12612, the rule does not have 
significant Federalism implications to warrant the preparation of a 
Federalism Assessment for the reasons discussed above.

G. Executive Order 12988--Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

H. 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. since it affects fewer than ten respondents.

I. National Environmental Policy Act

    OSM has prepared a draft environmental assessment (EA) of this 
proposed rule and has made a tentative finding that it 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. section 4332(2)(C). It is anticipated that a finding of no 
significant impact (FONSI) will be made for the final rule in 
accordance with OSM procedures under NEPA. The EA is on file in the OSM 
Administrative Record at the address specified previously (see 
ADDRESSES). The EA will be completed and a finding made on the 
significance of any resulting impacts before we publish the final rule.

J. Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this proposed rule easier to understand, including answers to questions 
such as the following: (1) Are the requirements in the proposed rule 
clearly stated? (2) Does the proposed rule contain technical language 
or jargon that interferes with its clarity? (3) Does the format of the 
proposed rule (grouping and order of sections, use of headings, 
paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be 
easier to understand if it were divided into more (but shorter) 
sections? (A ``section'' appears in bold type and is preceded by the 
symbol ``Sec. '' and a numbered heading; for example, Sec. 874.17 AML 
agency procedures for reclamation projects receiving less than 50 
percent government funding.). (5) Is the description of the proposed 
rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful 
in understanding the proposed rule? What else could we do to make the 
proposed rule easier to understand?
    Send a copy of any comments that concern how we could make this 
proposed rule easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street NW, Washington, DC 
20240. You may also e-mail the comments to this address: 
E[email protected].
Author
    The principal author of this proposed rule is Suzanne Hudak, Office 
of Surface Mining Reclamation and Enforcement, 1951 Constitution Ave., 
N.W., Washington, D.C. 20240. Telephone: (202) 208-2661.

List of Subjects

30 CFR Part 700
    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Surface mining, Underground mining.

30 CFR Part 740

    Public lands, Mineral resources, Reporting and recordkeeping 
requirements, Surety bonds, Surface mining, Underground mining.

30 CFR Part 746

    Public lands--mineral resources, Reporting and recordkeeping 
requirements, Surface mining, underground mining.

30 CFR Part 750

    Indians--lands, Reporting and recordkeeping requirements, Surface 
mining.

    Dated: February 11, 1999.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.

    For the reasons given in the preamble, OSM is proposing to amend 30 
CFR parts 700, 740, 746 and 750 as set forth below:

PART 700--GENERAL

    1. The authority citation for part 700 continues to read as 
follows:

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

    2. In Sec. 700.5, the definition of ``Indian lands'' is revised to 
read as follows:


Sec. 700.5  Definitions.

* * * * *
    Indian lands means--
    (a) All lands, including mineral interests, within the exterior 
boundaries of any Federal Indian reservation, notwithstanding the 
issuance of any patent or rights-of-way; and
    (b) All lands including mineral interests held in trust for or 
supervised by an Indian tribe. Such lands include, but are not limited 
to, all allotments held in trust by the Federal government for an 
individual Indian or Indians, the Indian titles to which have not been 
extinguished, including rights-of-way

[[Page 8476]]

running through such allotments, where such allotments are located 
within a tribal land consolidation area approved by the Secretary or 
his authorized representative under 25 U.S.C. 2203.
* * * * *

PART 740--GENERAL REQUIREMENTS FOR SURFACE COAL MINING AND 
RECLAMATION OPERATIONS ON FEDERAL LANDS

    3. The authority citation for part 740 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq.

    4. Section 740.1 is amended by adding a sentence at the end of the 
section to read as follows:


Sec. 740.1  Scope and purpose.

    It also provides the process and requirements for the mining of 
leased Federal coal on Indian lands.
    5. Section 740.4 is amended by removing the word ``and'' at the end 
of paragraph(b)(4), removing the period at the end of paragraph(b)(5) 
and adding a semicolon and the word ``and'' at the end of the same 
paragraph, and adding a new paragraph (b)(6) to read as follows:


Sec. 740.4  Responsibilities.

* * * * *
    (b) * * *
    (6) When Federal coal is located on Indian lands, as the term 
Indian lands is defined at Sec. 700.5 of this chapter, regulating 
surface coal mining and reclamation operations in accordance with the 
Indian lands program at part 750 of this chapter and the requirements 
in Sec. 740.11(h).
* * * * *
    6. In paragraph (a) of Sec. 740.5, the definitions of ``Leased 
Federal coal'' and ``Permit application package'' are revised to read 
as follows:


Sec. 740.5  Definitions.

    (a) * * *
    Leased Federal coal means coal leased by the United States under 43 
CFR Group 3400.
* * * * *
    Permit application package means a proposal to conduct surface coal 
mining and reclamation operations on Federal lands or on Indian lands 
containing leased Federal coal, including the following materials:
    (1) An application for a permit, permit revision or permit renewal;
    (2) All the information required by the Act, this subchapter, the 
applicable regulatory program, any applicable cooperative agreement and 
all other applicable laws and regulations; and
    (3) For leased Federal coal, the information required by the 
Mineral Leasing Act and its implementing regulations.
* * * * *
    7. In Sec. 740.11, paragraph (h) is added to read as follows:


Sec. 740.11  Applicability.

* * * * *
    (h) Where surface coal mining and reclamation operations are on 
Indian lands, as the term Indian lands is defined at Sec. 700.5 of this 
chapter, and the lands include leased Federal coal, the Indian lands 
program at part 750 of this chapter and the following provisions of 
this subchapter apply:
    (1) Section 740.1;
    (2) Sections 740.4(a)(1), (b)(1), (b)(6), (d)(1) through (5) and 
(d)(9); (3) Section 740.5;
    (4) Section 740.11(d);
    (5) Sections 740.13(a)(1), (2), (c)(1) through (3) and (d)(2);
    (6) Sections 740.15(a) and (d)(1);
    (7) Sections 740.19(a)(1), (2) and (b)(2); and
    (8) Part 746.

PART 746--REVIEW AND APPROVAL OF MINING PLANS

    8. The authority citation for part 746 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq.

    9. In Sec. 746.13, paragraph (f) is revised to read as follows:


Sec. 746.13  Decision document and recommendation on mining plan.

* * * * *
    (f) The findings and recommendations of the regulatory authority 
with respect to the permit application and the applicable regulatory 
program; and
* * * * *

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

    10. The authority citation for part 750 is revised to read as 
follows:

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

    11. In Sec. 750.6, paragraphs (b)(2) through (4) are redesignated 
as (b)(3) through (5), a new paragraph (b)(2) is added, and paragraphs 
(d)(2) and (3) are revised to read as follows:


Sec. 750.6  Responsibilities.

* * * * *
    (b) * * *
    (2) Administering the Mineral Leasing Act of 1920, 30 U.S.C. 181 et 
seq., and other applicable statutes, with respect to coal mining, 
production, and resource recovery and protection operations on Federal 
coal leases and licenses, regardless of surface ownership, as provided 
in 43 CFR Chapter II, Group 3400;
* * * * *
    (d) * * *
    (2) After consultation with the affected tribe, Indian mineral 
owners, or other Indian land owners, as appropriate, reviewing and 
making recommendations to OSM concerning permit applications, renewals, 
revisions or transfers of permits, permit rights or performance bonds; 
and
    (3) After consultation with the affected tribe, Indian mineral 
owners or other Indian land owners, as appropriate, reviewing and 
making recommendations to the Bureau of Land Management under 25 CFR 
216.7.
    12. In Sec. 750.12, paragraph (c)(3) is redesignated as paragraph 
(c)(4), a new paragraph (c)(3) is added, and the last sentence of newly 
designated paragraph (c)(4)(i) is revised, to read as follows:


Sec. 750.12  Permit applications.

* * * * *
    (c) * * *
    (3) On Indian lands containing leased Federal coal, the 
requirements of Sec. 740.11(h) of this chapter apply.
    (4) * * *
    (i) * * * Leasehold interests may be transferred or assigned in 
accordance with 25 CFR parts 211 or 212 or 43 CFR part 3453, as 
applicable.
* * * * *
[FR Doc. 99-4153 Filed 2-18-99; 8:45 am]
BILLING CODE 4310-05-P