[Federal Register Volume 67, Number 118 (Wednesday, June 19, 2002)]
[Proposed Rules]
[Pages 41756-41759]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15374]



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Part II





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



30 CFR Part 875



Abandoned Mine Land Reclamation Notices; Proposed Rule

  Federal Register / Vol. 67, No. 118 / Wednesday, June 19, 2002 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 875

RIN: 1029-AB99


Abandoned Mine Land Reclamation Notices

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

ACTION: Proposed rule.

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SUMMARY: Currently regulations require us to publish a Federal Register 
notice whenever we receive a State or tribal application to build 
public facilities using Abandoned Mine Land Reclamation Funds. We 
propose to change this requirement so that we would publish a notice 
only when the Director of the Office of Surface Mining (OSM) finds it 
necessary. We also propose to correct errors in four cross-references.

DATES: Written comments: We will accept written comments on the 
proposed rule until 5 p.m., Eastern Time, on August 19, 2002.
    Public hearings: Upon request, we will hold a public hearing on the 
proposed rule at a date, time and location to be announced in the 
Federal Register before the hearing. We will accept requests for a 
public hearing until 5 p.m., Eastern Time, on July 10, 2002.

ADDRESSES: If you wish to comment, you may submit your comments on this 
proposed rule by one of two methods. You may mail or hand carry 
comments to the Office of Surface Mining Reclamation and Enforcement, 
Administrative Record, Room 101, 1951 Constitution Avenue, NW., 
Washington, DC 20240.
    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 before the hearing. Any disabled 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: Danny Lytton, Office of Surface Mining 
Reclamation and Enforcement, U.S. Department of the Interior, 1951 
Constitution Avenue NW., MS-121-SIB, Washington DC 20240; Telephone: 
202-208-2788.

SUPPLEMENTARY INFORMATION:

I. Discussion of Proposed Rule
II. How Do I Submit Comments on the Proposed Rule?
III. Procedural Matters and Required Determinations

I. Discussion of the Proposed Rule

    We are revising our regulations at 30 CFR 875.15(f) which govern 
public notification for certain non-coal reclamation projects funded by 
the AML Reclamation Fund under 30 CFR part 875. There are 23 States and 
3 Indian tribes with approved AML programs. Only 6 of these programs 
are currently certified for non-coal reclamation projects, i.e., all of 
their existing known coal-related reclamation objectives have been 
completed. They are the programs of the States of Louisiana, Montana, 
Texas and Wyoming, and the Hopi Tribe and Navajo Nation. Only these 6 
programs are, therefore, eligible for 30 CFR part 875 AML funding of 
non-coal reclamation projects.
    The current regulations at 30 CFR 875.15(f) require that the 
Director publish a Federal Register notice announcing the receipt of, 
and seeking comments on, AML grant applications for non-coal 
reclamation projects submitted by a governor of a State or the 
equivalent head of an Indian tribe. The grant applications are requests 
for funds for the construction of specific public facilities related to 
the coal or minerals industry in communities impacted by coal or other 
mineral mining and processing practices. Such construction projects are 
authorized by section 411(f) of the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA) after all coal-related reclamation 
objectives have been or are in the process of being completed. For the 
reasons set forth below, we are proposing to make the Director's 
Federal Register notice requirement a discretionary action.
    The current regulatory scheme for 30 CFR part 875 provides for a 
level of public notice that, in most cases, makes the additional 
Federal Register notice of Sec. 875.15(f) redundant. For example, 
Sec. 875.13 provides for a public notice certification process by the 
State or Indian tribe that it has completed all existing known coal-
related reclamation objectives for eligible lands or waters. Section 
875.15(d) then allows the State or Indian tribe to submit to the 
Director a grant application for AML funding of specific non-coal 
projects. Section 875.15(e) details the information required in the 
grant application. In particular, paragraph (e)(7) requires the 
Director to conduct an analysis and review of the procedures used by 
the State or Indian tribe to notify and involve the public in the 
funding request and a copy of all comments received and their 
resolution by the State or Indian tribe. The 1994 preamble discussion 
of the Sec. 875.15(e) grant information requirements noted that they 
were intended to assist the Director in determining whether a ``need'' 
exists and whether the public had been ``fully appraised and informed'' 
of the grant request (May 31, 1994, 59 FR 28163).
    Irrespective of the outcome of the Director's Sec. 875.15(e) public 
notice determination, Sec. 875.15(f) next requires that the Director 
prepare a Federal Register notice of the State's or Indian tribe's 
grant application. Following receipt and evaluation of comments 
generated by that Federal Register notice, the Director is to make his/
her decision on the grant application. It is not clear why the 1994 
rule required the additional Sec. 875.15(f) Federal Register notice of 
the grant application as there was no preamble discussion of this 
provision and the enabling statute for Sec. 875.15 does not require the 
additional notice. (May 31, 1994, 59 FR 28163-4), 30 U.S.C. 1240(f).
    Accordingly, we are proposing to make Sec. 875.15(f)'s required 
Federal Register notice discretionary. We believe that if the Director 
can determine from the Sec. 875.15(e)(7) information previously 
submitted by the State or Indian tribe in its grant application that 
the public has already been ``fully appraised and informed'' of the 
grant request, a subsequent Sec. 875.15(f) required Federal Register 
notice covering the same ground would not meaningfully add to the 
Director's decision-making process. Conversely, if the Director cannot 
determine from the (e)(7) information submitted by the State or Indian 
tribe that the public has been ``fully appraised and informed'' of the 
grant request, the Director should prepare a Sec. 875.15(f) Federal 
Register notice of the grant request so as to assure adequate public 
notice. The proposed rule would give the Director the option of 
requiring an additional Federal Register notice dependent on the extent 
of prior (e)(7) public notice. This would seem to be a reasonable 
course. It would assure adequate public notice of the State's or Indian 
tribe's grant request (with or without a Federal Register notice) while 
avoiding the delay and expense of an unnecessary Federal Register 
notice. We are, therefore, proposing to revise Sec. 875.15(f) by 
inserting the words ``if necessary to ensure adequate public 
notification.'' Proposed Sec. 875.15(f), with revised inserts 
italicized, will read as follows:
    After review of the information contained in the application, the 
Director shall, if necessary to ensure adequate public notification, 
prepare a

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Federal Register notice regarding the State's or Indian tribe's 
submission and provide for public comment. After receipt and evaluation 
of any comments and a determination that the funding meets the 
requirements of the regulations in this part and is in the best 
interest of the State or Indian tribe AML program, the Director shall 
approve the request for funding the activity or construction at a cost 
commensurate with its benefits towards achieving the purposes of the 
Surface Mining Control and Reclamation Act of 1977.
    There are several other practical reasons to reject the current 
rule's Sec. 875.15(f) requirement of a Federal Register notice and to 
adopt the proposed rule's more flexible approach. The first is that, 
since the rule was initially promulgated seven years ago, there have 
been no comments submitted in response to any of the required Federal 
Register notices published by the Director. This fact was brought to 
light as a result of an inquiry from several of the States and Indian 
tribes attending the August 2001 AML Conference held in Athens, Ohio, 
who questioned the need for the Director's required Sec. 875.15(f) 
Federal Register notice. OSM subsequently reviewed its own records and 
discovered that it had never received any public comments to the 
required Sec. 875.15(f) Federal Register notices. The agency then 
polled the 6 eligible AML programs on the public response to their own 
subsection (e)(7) public notice efforts. All of the programs questioned 
the need for the required Sec. 875.15(f) Federal Register notice and 
reported a general lack of public response to their individual (e)(7) 
public notice efforts. Wyoming's, which is by far the largest of the 
AML programs certified under Sec. 875.13 and which has funded thirty-
six (36) Sec. 875.15 public facilities projects with AML grant funds, 
report was of particular note. Although Wyoming's AML program provides 
for extensive local public notice and a public hearing on all proposed 
Sec. 875.15 projects, that State reported that ``even these local 
opportunities for comment elicit little if any response from those 
directly impacted by the project.'' This consistent lack of local 
response to local notice from the Wyoming AML program regarding 
prospective Sec. 875.15 projects underscores the fact that the current 
rule's requirement for additional Federal Register notice, while 
helpful in theory, has not produced meaningful public notice and 
comment.
    OSM's polling of the 6 States and Indian tribes brought to light 
additional reasons not to retain the current rule's Federal Register 
notice requirement. The Navajo Nation, which has a substantial number 
of applications ready for processing as soon as its revised AML plan is 
approved, strongly opposes the current rule's required Federal Register 
notice because of its own internal AML notice procedures. By tribal 
law, the Navajo Nation has had to hold public meetings for each of its 
100 or more individual political units whenever AML funds are to be 
used anywhere in their tribal boundaries for the construction of public 
facilities. The current rule's Sec. 875.15(f) required Federal Register 
notice would, therefore, trigger a redundant, time-consuming round of 
tribal meetings on the very same projects.
    Another reason given by some of the States and Indian tribes for 
opposing the continuance of the Sec. 875.15(f) required Federal 
Register notice is that for programs with shorter construction seasons 
like those of Montana and Wyoming, the required Federal Register notice 
adds 45 to 60 days to the project approval process. These additional 45 
to 60 days can push completion of a funded public facility well into 
the next construction season.
    In light of the above, we are proposing to remove the requirement 
in Sec. 875.15(f) that the Director always publish a Federal Register 
notice informing the public of the grant application. Instead, the 
Director would retain the option of publishing such notice if his/her 
analysis and review of the notice information required under 
Sec. 875.15(e)(7) indicated that inadequate procedures were used to 
notify and involve the public in the funding request. In this way, the 
public will be assured that it has been fully apprised of the grant 
application while also being protected from the delay and expense of an 
unnecessary Federal Register notice.

Technical Corrections

    In addition to the above, we are also revising our regulations at 
Secs. 875.15(d) and (e) to correct errors in four existing cross-
references. In Sec. 875.15(d), we are changing the cross references 
from paragraphs (a), (d), and (e) to paragraphs (b), (e), and (f), 
respectively. In Sec. 875.15(e), we are changing the cross reference 
from paragraph (c) to paragraph (d). These revisions to the cross 
references will not result in any substantive changes in the 
application of our regulations.
    Finally, we have rewritten `` 875.15(f) in plain language format by 
incorporating numbered paragraphs to make the section more reader 
friendly. No substantive changes resulted from using the plain language 
format.

How Will This Rule Affect State and Indian Programs?

    Following publication of a final rule, we evaluate the State and 
Indian programs approved under section 405 of SMCRA to determine any 
changes in those programs that may be necessary. When we determine that 
a particular State program provision should be amended, the particular 
State will be notified in accordance with the provisions of 30 CFR 
732.17. On the basis of the proposed rule, we have made a preliminary 
determination that no program revisions will be required.

II. How Do I Submit Comments on the Proposed Rule?

    Written Comments: If you submit written comments on the proposed 
rule during the 60-day comment period, they should be specific, should 
be confined to issues pertinent to the notice, and should explain the 
reason for any recommended change(s). Where practicable, you should 
submit three copies of your comments. Comments delivered to an address 
other than those listed above (see ADDRESSES) may not be considered or 
included in the Administrative Record.
    Availability of Comments: Our practice is to make comments, 
including names and home addresses of respondents, available for public 
review during regular business hours at the OSM Administrative Record 
Room (see ADDRESSES). Individual respondents may request that we 
withhold their home address from the rulemaking record, which we will 
honor to the extent allowable by law. There also may be circumstances 
in which we would withhold from the rulemaking record a respondent=s 
identity, to the extent allowed by law. If you wish us to withhold your 
name and/or address, you must state this prominently at the beginning 
of your comment. However, we will not 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.
    Public hearings: 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 in a hearing should inform 
Mr. Danny Lytton (see FOR FURTHER INFORMATION CONTACT), either orally 
or in writing by 5:00 p.m., Eastern time, on July 10,

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2002. If no one has contacted Mr. Lytton to express an interest in 
participating in a hearing 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.
    The public hearing will continue on the specified date until all 
persons scheduled to speak have been heard. If you are in the audience 
and have not been scheduled to speak and wish to do so, you will be 
allowed to speak after those who have been scheduled. We will end the 
hearing after all persons scheduled to speak and persons present in the 
audience who wish to speak have been heard. To assist the transcriber 
and ensure an accurate record, we request, if possible, that each 
person who testifies at a public hearing provide us with a written copy 
of his or her testimony.

III. Procedural Matters and Required Determinations

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.
    a. 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 
elimination of the mandatory requirement to publish a Federal Register 
notice is not expected to have an adverse economic impact on States and 
Indian tribes. It may in fact reduce constructions costs in northern 
climates by eliminating delays.
    b. This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    c. This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    d. This rule does not raise novel legal or policy issues.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not considered a Asignificant energy action'' under 
Executive Order 13211. The elimination of the mandatory requirement to 
publish a Federal Register notice will not have a significant affect on 
the supply, distribution, or use of energy. The elimination of the 
mandatory requirement may reduce constructions costs in northern 
climates by eliminating delays.

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.). 
As previously stated, the elimination of the requirement for a 
mandatory Federal Register notice is not expected to have an adverse 
economic impact. Further, 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.

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:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions
    c. 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.

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, 
Tribal, or local governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1534) is not required.

Executive Order 12630--Takings

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

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.

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.

Paperwork Reduction Act

    This rule does not require an information collection from 10 or 
more parties and a submission under the Paperwork Reduction Act to the 
Office of Management and Budget is not required.

National Environmental Policy Act

    OSM has reviewed this rule and determined that it is categorically 
excluded from the National Environmental Policy Act process in 
accordance with the Departmental Manual 516 DM 2, Appendix 1.10.

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. 875.15.)? 
(5) Is the description of the proposed rule in the SUPPLEMENTARY 
INFORMATION section of this preamble helpful in understanding the 
proposed rule? (6) 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 
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: [email protected].

List of Subjects in 30 CFR Part 875

    Grant program--natural resources, Indian lands, Reclamation, 
Surface mining, Underground mining.


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    Dated: May 16, 2002.
Rebecca W. Watson,
Assistant Secretary, Land and Minerals Management.

    Accordingly, we propose to amend 30 CFR part 875 as set forth 
below.

PART 875--NONCOAL RECLAMATION

    1. The authority citation for part 875 continues to read as 
follows:

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

    2. Amend Sec. 875.15 as follows:
    a. In paragraph (d), remove the phrases ``paragraph (a),'' 
``paragraph (d),'' and ``paragraph (e)'' and in their place add 
``paragraph (b),'' ``paragraph (e),'' and ``paragraph (f),'' 
respectively.
    b. In paragraph (e), remove the phrase ``paragraph (c)'' and add 
``paragraph (d).''
    c. Revise paragraph (f) to read as follows.


875.15  Reclamation priorities for noncoal program.

* * * * *
    (f) After review of the information contained in the application, 
the Director will, if necessary to ensure adequate public notification, 
prepare a Federal Register notice regarding the State's or Indian 
Tribe's submission and provide for public comment. The Director will 
then:
    (1) Evaluate any comments received;
    (2) Determine whether the funding meets the requirements of this 
part;
    (3) Determine whether the funding is in the best interest of the 
State or Indian tribe AML program;
    (4) If the determinations under paragraphs (f)(2) and (f)(3) of 
this section are positive, approve the request for funding the activity 
or construction; and
    (5) Approve funding under paragraph (f)(4) of this section only at 
a cost commensurate with its benefits towards achieving the purposes of 
the Surface Mining Control and Reclamation Act of 1977.

[FR Doc. 02-15374 Filed 6-18-02; 8:45 am]
BILLING CODE 4310-05-P