[Federal Register Volume 68, Number 39 (Thursday, February 27, 2003)]
[Rules and Regulations]
[Pages 9500-9502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4647]



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Part V





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Part 875



Abandoned Mine Land Reclamation Notices; Final Rule

  Federal Register / Vol. 68, No. 39 / Thursday, February 27, 2003 / 
Rules and Regulations  

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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: Final rule.

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SUMMARY: We are revising our regulations governing the processing of 
State and tribal grant applications to build public facilities using 
Abandoned Mine Land (AML) Reclamation Funds. The existing regulations 
require us to publish a Federal Register notice whenever we receive a 
grant application to build a public facility. We are changing this 
requirement to one that requires us to publish a notice only when the 
Director of the Office of Surface Mining (OSM) finds it necessary to 
ensure adequate public notice of the grant application. We are also 
correcting errors in four cross-references.

EFFECTIVE DATE: March 31, 2003.

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; E-mail: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background and Discussion of the Final Rule
II. Discussion of the Public Comments Received
III. How Will This Rule Affect State and Indian Programs?
IV. Procedural Matters and Required Determinations

I. Background and Discussion of the Final Rule

    On June 19, 2002, we published in the Federal Register (67 FR 
41756) proposed revisions to our regulations at 30 CFR 875.15(f). Those 
regulations govern public notification for certain non-coal reclamation 
projects funded by the AML Reclamation Fund. 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 making the OSM Director's (hereinafter 
Director) 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 of a State or Indian tribe's 
certification 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(a).
    Accordingly, we are making the Federal Register notice required by 
Sec.  875.15(f) 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 ensure adequate public notice. This final 
rule will give the Director the option of requiring an additional 
Federal Register notice dependent on the extent of prior (e)(7) public 
notice. This seems to be a reasonable course. It ensures 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, revising 
Sec.  875.15(f) by inserting the words ``if necessary to ensure 
adequate public notification.'' The first sentence of Sec.  875.15(f), 
with 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 Federal 
Register notice regarding the State's or Indian tribe's submission and 
provide for public comment.''
    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

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notice. We subsequently reviewed our own records and discovered that we 
had never received any public comments to the required Sec.  875.15(f) 
Federal Register notices. We 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. The response 
of Wyoming, 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, 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.
    Our 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 removing 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 
will retain the option of publishing such notice if his/her analysis 
and review of the notice information required under Sec.  875.15(e)(7) 
indicates that inadequate procedures were used to notify and involve 
the public in the funding request. In this way, we can ensure that the 
public 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 
Sec. Sec.  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 Sec.  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.

II. Discussion of the Public Comments Received

    Comments were requested on the proposed rule and a total of two 
comments were received. They were from the State of Wyoming's Abandoned 
Mine Land Program and the Interstate Mining Compact Commission. Both 
commenters supported the proposed revisions. No one requested a public 
hearing and none was held.

III. How Will This Rule Affect State and Indian Programs?

    Following publication of this final rule, we will 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 884.15. We have made a preliminary determination that no 
program revisions will be required.

IV. 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 construction 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.

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

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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.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes. 
As previously stated, 2 tribes will be affected by the rule, the Hopi 
Tribe and Navajo Nation. The rule will most likely shorten the 
processing time for most grant applications received from the Hopi and 
Navajo by eliminating the mandatory requirement to publish a Federal 
Register notice whenever we receive a grant application to build a 
public facility.

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

    This rule is not considered a ``significant 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 construction costs in northern 
climates by eliminating delays.

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

    We have 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.

List of Subjects in 30 CFR Part 875

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

    Dated: January 29, 2003.
Rebecca W. Watson,
Assistant Secretary, Land and Minerals Management.

    Accordingly, we are amending 30 CFR part 875 as set forth below.

PART 875--NONCOAL RECLAMATION FUND

    1. The authority citation for part 875 constinues 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:


Sec.  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. 03-4647 Filed 2-26-03; 8:45 am]
BILLING CODE 4310-05-P