[Federal Register Volume 73, Number 85 (Thursday, May 1, 2008)]
[Proposed Rules]
[Pages 24120-24129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9564]



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Part II





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Parts 732, 785, 870 and 872



Remining Incentives; Proposed Rule

  Federal Register / Vol. 73, No. 85 / Thursday, May 1, 2008 / Proposed 
Rules  

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 732, 785, 870 and 872

[Docket ID: OSM-2007-0016]
RIN 1029-AC57


Remining Incentives

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

ACTION: Proposed rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are proposing to amend our existing regulations to provide 
incentives to promote the remining and reclamation of eligible 
abandoned coal mine refuse piles. We are also considering and seeking 
comment on other remining incentives that were authorized by recent 
amendments to the Surface Mining Control and Reclamation Act of 1977 
made by the Tax Relief and Health Care Act of 2006 (2006 Act).

DATES: Comments on the proposed rule must be received on or before on 
June 30, 2008, to ensure our consideration.
    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 4 p.m., Eastern Time, on May 22, 2008. If you wish 
to attend a hearing, but not speak, you should contact the person 
identified under FOR FURTHER INFORMATION CONTACT before the hearing 
date to verify that the hearing will be held. If you wish to attend and 
speak at a hearing, you should follow the procedures under ``III. 
Public Comment Procedures'' in the SUPPLEMENTARY INFORMATION section of 
this document.

ADDRESSES: You may submit comments by any of the following methods:
     Federal e-Rulemaking Portal: www.regulations.gov. The 
notice is listed under the agency name ``Office of Surface Mining 
Reclamation and Enforcement.'' The proposed rule has been assigned 
Docket ID: OSM-2007-0016.
    If you would like to submit comments through the Federal e-
Rulemaking Portal, go to www.regulations.gov and do the following. 
Click on the ``Advanced Docket Search'' button on the right side of the 
screen. Type in the Docket ID OSM-2007-0016 and click the ``Submit'' 
button at the bottom of the page. The next screen will display the 
Docket Search Results for the rulemaking. If you click on OSM-2007-
0016, you can view the proposed rule and submit a comment. You can also 
view supporting material and any comments submitted by others.
     Mail, Hand-Delivery/Courier to: Office of Surface Mining 
Reclamation and Enforcement, Administrative Record, Room 252-SIB, 1951 
Constitution Avenue, NW., Washington, DC 20240. Please include the 
Docket ID (OSM-2007-0016) with your comment.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments sent to an address other than those 
listed above will not be included in the docket for this rulemaking.
    For additional information on the rulemaking process and the public 
availability of comments, see ``III. Public Comment Procedures'' in the 
SUPPLEMENTARY INFORMATION section of this document.
    If you wish to comment on the information collection aspects of 
this proposed rule, submit your comments to the Office of Management 
and Budget, Office of Information and Regulatory Affairs, Attention: 
Interior Desk Officer, via electronic mail, to [email protected] 
or via fax at (202) 395-6566. Please refer to OMB control number 1029-
0040 in your correspondence.

FOR FURTHER INFORMATION CONTACT: James M. Taitt, Office of Surface 
Mining Reclamation and Enforcement, Three Parkway Center, Pittsburgh, 
PA 15220. Telephone: 412-937-2106.

SUPPLEMENTARY INFORMATION: 

I. Background
    A. Remining
    B. The 2006 Act
    C. Outreach Summary
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background

A. Remining

    Remining is defined in 30 CFR 701.5 as ``surface coal mining and 
reclamation operations which affect previously mined areas.'' Many 
previously mined areas, generally those mined prior to the passage of 
SMCRA, were not adequately reclaimed during the original mining 
operation. These sites often include environmental and safety problems 
resulting from inadequate reclamation, such as landslides, instability, 
erosion and sedimentation of streams, inadequate vegetation, and water 
quality problems. In many cases, previously mined lands may still 
include coal reserves that can be economically mined using present 
technology. Often, operators can economically remine and reclaim these 
areas while at the same time eliminating the environmental and safety 
problems associated with the site.
    Recognizing that remining can eliminate environmental and safety 
problems at previously mined sites while recovering coal reserves, 
Congress, in 1992, revised SMCRA to encourage remining. In the Energy 
Policy Act of 1992 (EPAct) (Pub. L. 102-486), Congress amended section 
404 of SMCRA (30 U.S.C. 1234) to extend eligibility for reclamation of 
lands and water under that section to lands which are reaffected by 
remining operations. In the May 31, 1994, Federal Register (59 FR 
28136) we published a final rule implementing changes to SMCRA made by 
the EPAct. We promulgated 30 CFR 874.12(h) which provides in relevant 
part that ``[s]urface coal mining operations on lands eligible for 
remining pursuant to section 404 of the Act shall not affect the 
eligibility of such lands for reclamation activities after the release 
of the bonds or deposits posted by any such operation as provided by 
Sec.  800.40 of this chapter.''
    We made further changes in our rules regarding remining in response 
to revisions to SMCRA made by the EPAct. In the November 27, 1995, 
Federal Register (60 FR 58479) we published amendments to our rules at 
30 CFR 701.5, 773.15(b)(4)(i), 785.25, and 816/817.116(c)(2) that were 
designed to encourage remining of lands eligible for expenditures under 
sections 402(g)(4) and 404 of SMCRA.
    In the February 12, 1999, Federal Register (64 FR 7470) we 
published a rule concerning the financing of abandoned mine land 
reclamation (AML) projects that involve the incidental extraction of 
coal. The rule (known as the enhancing AML reclamation rule) amends the 
definition of ``government-financed construction'' at 30 CFR 707.5.
    We have also published a proposed rule that provides environmental 
performance and reclamation standards for remining abandoned coal 
refuse remining operations. That proposed rule was published in the 
Federal Register on January 17, 2007 (72 FR 2136). A provision of the 
January 17th proposed rule proposes a definition of the term 
``abandoned coal refuse remining operations'' at 30 CFR 701.5. That 
proposed definition states:

    Abandoned coal refuse remining operations means those surface 
mining activities for the on-site reprocessing of abandoned coal 
refuse and for the removal of abandoned coal refuse on lands that 
would

[[Page 24121]]

otherwise be eligible for expenditure under section 404 and section 
402(g)(4) of the Act. Reprocessing operations include on-site 
activities that separate the coal from waste material using specific 
gravity or floatation methods, as well as activities that use 
mechanical means to sort and size the refuse material prior to 
separation. Removal operations include on-site activities that 
remove refuse from the site as well as those activities that use 
mechanical means to sort and size the refuse material prior to its 
removal. The term ``abandoned coal refuse remining operations'' does 
not encompass the removal of refuse for non-fuel uses.

    A final rule regarding this definition has not yet been 
promulgated, but the term has been used throughout this preamble and in 
our proposed rule language. Therefore, for purposes of the rulemaking, 
we will review any comments on the definition submitted in response to 
the January 17th proposed rule and we will accept any additional 
comments with regard to the definition that are submitted concerning 
this proposed rule.

B. The 2006 Act

Remining Incentives
    On December 20, 2006, Congress enacted the 2006 Act, which included 
amendments to SMCRA. These amendments, among other things, added 
section 415, titled ``Remining Incentives'' to SMCRA. Section 415 gives 
the Secretary of the Interior the option to promulgate rules, subject 
to certain requirements, to provide incentives to promote remining of 
eligible lands. Section 415(a) provides that rules promulgated under 
this section must:

* * * describe conditions under which amounts in the fund may be 
used to provide incentives to promote remining of eligible land 
under section 404 in a manner that leverages the use of amounts from 
the fund to achieve more reclamation with respect to the eligible 
land than would be achieved without the incentives.

    The fund referred to in that provision is defined in SMCRA section 
701(7) as ``the Abandoned Mine Reclamation Fund established pursuant to 
section 401.'' In this proposed rule we refer to the Abandoned Mine 
Reclamation Fund as ``the Fund.''
    Section 415(b) provides that ``Any regulations promulgated under 
subsection (a) shall specify that the incentives shall apply only if 
the Secretary determines, with the concurrence of the State regulatory 
authority referred to in title V, that, without the incentives, the 
eligible land would not be likely to be remined and reclaimed.''
    In essence, section 415 establishes that the Secretary has 
discretion to promulgate rules authorizing remining incentives that use 
amounts from the Fund, so long as the incentives meet certain 
requirements. Section 415(c) specifies two types of incentives that the 
Secretary may consider.

    (1) IN GENERAL.--Incentives that may be considered for inclusion 
in the regulations promulgated under subsection (a) include, but are 
not limited to--
    (A) A rebate or waiver of the reclamation fees required under 
section 402(a); and
    (B) The use of amounts in the fund to provide financial 
assurance for remining operations in lieu of all or a portion of the 
performance bonds required under section 509.

    Section 415(c)(1)(A) specifies that the Secretary may consider a 
rebate or waiver of the reclamation fees that operators must pay for 
coal produced. Reclamation fees are authorized by SMCRA section 402 (30 
U.S.C. 1232) which is implemented in large part at 30 CFR part 870. 
These fees are collected from coal companies and deposited into the 
Fund account in the United States Treasury. The Fund is then allocated 
according to SMCRA. Section 415 authorizes the Secretary to consider 
whether rebate or waiver of these reclamation fees as an incentive for 
remining operations would achieve more reclamation of eligible lands 
than would otherwise be achieved. Only moneys from the Fund can be used 
for incentives authorized under section 415. As a result, States cannot 
use prior balance money they receive under SMCRA section 411(h)(1) to 
pay for remining incentives because the prior balance money is 
appropriated from the general Treasury and not the Fund.
    Section 415(c)(1)(B) specifies the second incentive that the 
Secretary may consider: ``The use of amounts in the fund to provide 
financial assurance for remining operations in lieu of all or a portion 
of the performance bonds required under section 509.'' The performance 
bonds required by section 509 must be posted by permittees wishing to 
conduct coal mining and reclamation operations including remining 
operations. Section 509(a) provides that, ``[t]he amount of the bond 
shall be sufficient to assure the completion of the reclamation plan if 
the work had to be performed by the regulatory authority in the event 
of forfeiture * * *. .'' A permittee may have difficulty obtaining a 
bond for remining previously mined sites because of the environmental 
and safety problems often associated with these sites. Therefore, 
Congress authorized the Secretary to offer as a remining incentive, the 
use of amounts in the Fund in lieu of all or a portion of the 
performance bond.
Limitations on Remining Incentives
    As discussed above, general requirements for remining incentives 
are set out in sections 415(a) and (b). Section 415 sets no additional 
limitations on the use of amounts in the Fund as financial assurance in 
lieu of performance bonds for remining operations. However, under 
section 415(c), only two types of remining operations could be eligible 
for a rebate or waiver of reclamation fees: Those that remove or 
reprocess abandoned coal mine waste; and remining activities that meet 
the priorities specified in paragraph (1) or (2) of section 403(a).
    Section 415(c)(2) establishes limitations on the use of a rebate or 
waiver of reclamation fees. Subsection 415(c)(2)(A) provides that:

    A rebate or waiver under paragraph (1)(A) shall be used only for 
operations that--
    (i) Remove or reprocess abandoned coal mine waste; or
    (ii) Conduct remining activities that meet the priorities 
specified in paragraph (1) or (2) of section 403(a).

    Under subsection 415(c)(2)(B), ``[t]he amount of a rebate or waiver 
provided as an incentive under paragraph (1)(A) to remine or reclaim 
eligible land shall not exceed the estimated cost of reclaiming the 
eligible land under this section.''
Remining Operations
    Under subsection 415(c)(2)(A)(i), the Secretary may authorize a 
rebate or waiver of reclamation fees for operations that remove or 
reprocess abandoned coal mine waste. Abandoned coal mine waste 
(referred to in this rulemaking as abandoned coal refuse) is the refuse 
resulting from the cleaning of mined coal. Abandoned coal refuse sites 
are lands on which refuse was placed prior to the passage of SMCRA and 
that were not adequately reclaimed when mining was completed. The 
refuse material was often dumped or piled on lands without sufficient 
environmental protection controls or without ensuring stability of the 
piles. These piles can cause numerous environmental problems including 
acid drainage and pollution of adjacent streams, uncontrolled erosion 
resulting in stream siltation and downstream flooding, and diminished 
aesthetic qualities. Additionally, the coal refuse piles present 
serious health and safety risks including landslides, uncontrolled 
burning of the refuse material, and injuries to site visitors because 
of pile instability.

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    In many cases, the technology for separating coal from refuse 
material when these sites were created left a significant amount of 
coal in the piles. Operators may remine refuse material to recover coal 
by either reprocessing it (separating the coal from refuse material) in 
place or by hauling the refuse material to an offsite location for 
processing or burning. Remining and subsequent reclamation of refuse 
piles can eliminate safety and environmental problems while recovering 
coal reserves.
    Under subsection 415(c)(2)(A)(ii), the Secretary may authorize a 
waiver or rebate of reclamation fees for remining activities that meet 
the priorities specified in paragraph (1) or (2) of SMCRA section 
403(a) (known as priority 1 or priority 2 sites). Section 403(a) was 
also amended by the SMCRA Amendments of 2006. As amended, subsection 
403(a)(1) is subdivided into subparagraphs (1)(A) and (1)(B). 
Similarly, amended subsection 403(a)(2) is subdivided into 
subparagraphs (2)(A) and (2)(B). The priority referred to in 
subparagraph (1)(A) is protection of public health, safety, and 
property from extreme danger of adverse effects of coal mining 
practices; and the priority referred to in subparagraph (1)(B) is 
restoration of land and water resources and the environment that have 
been degraded by the adverse effects of coal mining practices; and are 
adjacent to a site that has been or will be remediated under 
subparagraph (1)(A). The priority referred to in subparagraph (2)(A) is 
protection of public health and safety from adverse effects of coal 
mining practices; and the priority referred to in subparagraph (2)(B) 
is restoration of land and water resources and the environment that 
have been degraded by the adverse effects of coal mining practices, and 
are adjacent to a site that has been or will be remediated under 
subparagraph (2)(A). OSM refers to the priorities in subparagraphs 
(1)(A) and (B) collectively as ``priority 1,'' and to the priorities in 
subparagraphs (2)(A) and (B) collectively as ``priority 2.''
    Priority 1 and priority 2 sites can include, among other things, 
abandoned surface mine areas and abandoned deep mine entries and voids, 
as well as abandoned coal refuse sites. As with coal refuse sites, 
remining of priority 1 and priority 2 sites can eliminate many safety 
and environmental hazards while recovering coal reserves.
    The 2006 Act made numerous other changes to SMCRA. This rule 
proposes regulations to implement only new SMCRA section 415. Other 
amendments of SMCRA in the 2006 Act will be addressed in separate 
rulemakings.

C. Outreach Summary

    Because Congress gave the Secretary the option to promulgate rules 
to use the Fund to implement section 415, we decided to ask 
stakeholders whether rules to encourage remining were necessary and, if 
so, what those rules should encompass. On February 23 and February 26, 
2007, we conducted an outreach program to solicit comments, concerns 
and ideas for regulatory changes to implement section 415. We provided, 
via e-mail, a series of discussion points for stakeholders to consider 
when thinking of possible regulatory changes. We asked the stakeholders 
whether incentives were necessary to encourage remining operations and 
if so, what form the incentives should take. We also were concerned 
about any impacts incentives for remining operations may have on the 
amount of money in the Fund that would be used to reclaim abandoned 
mine land projects.
    We sent the outreach discussion points to representatives of 
industry, the States, environmental, citizen and conservation 
organizations and groups. Information we received from the outreach was 
considered in the drafting of this proposed rule.
    We received a limited response to our outreach effort. For the most 
part, organizations that responded supported efforts to encourage the 
remining of abandoned coal mines and indicated that remining incentives 
could complement existing programs to encourage remining.
    In addition to the general comments supporting the concept of 
additional remining incentives, we also received some specific 
suggestions about incentives. One outreach respondent indicated that we 
should make a determination in the regulations that the incentives 
proposed will encourage remining that would not likely otherwise occur. 
The respondent believes that an individual finding by the Secretary for 
each remining permit would delay permit issuance and that the State 
regulatory authority should make the determination that remining 
permits are justified on a case by case basis. We have proposed a 
regulation at 30 CFR 732.18(c) that would implement this suggestion. We 
would interpret the requirement for the Secretary's determination in 
section 415(b) as a requirement applicable to changes in State AML or 
regulatory programs that implement these incentives. We do not propose 
to interpret section 415(b) as requiring a Secretarial determination 
for every proposed remining operation to which these incentives could 
apply.
    However, we recognize that delegating this responsibility to the 
State regulatory authority may not be feasible or wanted by States. In 
the alternative, a potential process could be developed where the OSM 
Field Office Directors would be responsible for making the 
determination that remining and reclamation would not likely occur, 
save for the remining incentives, on a case-by-case basis. Operators 
seeking incentives would propose the projects to the State regulatory 
authority who, in turn, would notify the OSM Field Office Director with 
oversight authority in their State. The Field Office Director would 
examine the permit application and would forward his or her 
determination of eligibility for remining incentives to the State 
regulatory authority. We are seeking comments on whether such a system 
would be practical and advantageous; and on whether some other method 
of making the finding required in section 415(b) could be more 
practical or more helpful.
    An outreach respondent indicated that waiver of reclamation fees 
was preferred over rebate of the fees. This respondent indicated that a 
rebate of fees would inject an element of uncertainty into the remining 
process when the purpose of the incentives should be to eliminate or 
reduce uncertainty. We have proposed rules at 30 CFR 785.26 and 30 CFR 
870.13(d) to provide for waivers of reclamation fees for abandoned coal 
refuse remining operations that remove all refuse material for 
reprocessing off site. However, we are seeking comments on whether 
rebates of reclamation fees for abandoned coal refuse remining 
operations would be more practical than waivers and would increase the 
number of remining operations and their subsequent reclamation.
    Another respondent to our outreach efforts supported the use of the 
Fund to provide financial assurance in lieu of some or all of the 
performance bonds. The respondent suggested that we establish a bond 
pool for remining operations. Since each State's bonding process is 
unique, we decided not to propose a national rule requiring a specific 
bonding system for remining operations such as a bond pool.
    One respondent proposed that we create a bond pool for remining 
projects in the anthracite and bituminous regions of Pennsylvania. A 
State-specific bonding program would be beyond the scope of a national 
rulemaking. We chose not to propose a rule to use monies from the Fund 
to provide financial assurances in lieu of all or part of required 
performance bonds. A nationwide rule that adds to,

[[Page 24123]]

or modifies, existing bonding regulations would not fit well with the 
diversity of bonding systems employed in the States. Additionally, one 
State indicated that it employed one agency to administer Title IV 
projects and a separate agency to administer Title V projects. That 
State was concerned that its laws may not allow the use of Title IV 
funds to provide bonds to guarantee reclamation of Title V projects or 
may not allow transfer of funds from its Title IV agency to its Title V 
agency.
    One respondent suggested that we develop a remining operator's 
assistance program to provide financial assistance to operators for 
preparing permit materials for remining sites. We are seeking comment 
from the public on the feasibility and utility of such a program.
    One respondent also indicated support of the concept of a special 
nationwide permit for remining, but disagrees with the way it was 
limited by the Army Corps of Engineers (COE). The respondent indicated 
that we should not follow the COE practice of defining a remining site 
by a ratio of 60% remining acreage to 40% new disturbance. The 
respondent believes this ratio will serve to limit the number of 
remining sites addressed and that operators need maximum incentives to 
ensure that as much remining will be done as promptly as possible. We 
are seeking further comment from the public on whether we should 
address the COE definition of remining in our final rule.
    A respondent requested that we revise 30 CFR 785.25 to remove 
paragraph (c) that allows 30 CFR 785.25 to expire. The removal of the 
September 30, 2004, expiration date will be addressed in a separate 
rulemaking.
    Several States expressed concerns about whether they would be 
required to amend their approved mining or abandoned mine land programs 
to include counterparts to any Federal rules promulgated under section 
415. We anticipate that State adoption of any rules we promulgate under 
section 415 of SMCRA will be discretionary. However, to participate in 
the remining incentives program, States will have to adopt rules that 
are no less effective than the Federal rules that may be eventually 
promulgated.

II. Description of the Proposed Amendment

    After considering the comments we received in outreach, we 
determined that, while there was a general interest in remining 
incentives, there was little agreement on what specific incentives 
should be offered. When envisioning rules to implement section 415, we 
determined that any incentives offered should be easily implemented and 
result in the most rapid and complete reclamation possible. We felt 
that permittees would not likely take advantage of incentives that add 
excessive recordkeeping burdens or result in cumbersome procedures. As 
a result, we determined that a waiver of reclamation fees would be the 
most logical incentive to implement. A waiver would require little or 
no additional recordkeeping by operators and would result in benefits 
to operators as soon as coal is recovered from remining operations. 
Since reclamation fees are based on the amount of coal produced, a 
waiver of fees would give operators more revenue per ton and would 
encourage operators to mine quickly and efficiently. Mining more 
rapidly will lead to more rapid reclamation and efficient mining will 
increase the amount of coal reserves recovered from remining 
operations.
    In deciding what types of remining operations we should encourage 
through the use of incentives, we felt that it would be logical to 
remine and subsequently reclaim previously affected sites that have 
serious environmental impacts and that have sufficient coal reserves to 
make a waiver of reclamation fees an attractive incentive. Coal refuse 
disposal sites appeared to be the most logical candidates that fit 
these criteria.
    The safety impacts of refuse disposal sites can be severe. Refuse 
piles placed on hillsides, such as exist throughout Appalachia, may be 
unstable and slip, resulting in landslides with damage to adjacent 
property and roads. In addition, refuse is often easily combustible 
because of its significant coal content. As a result, burning refuse 
banks have been serious problems, because of both noxious fume 
emissions and the potential for fires spreading to adjacent areas and 
to nearby residences. Refuse piles are also attractive for off-road 
vehicle use which, because of the piles' unstable and steep slopes, can 
result in injury and even death.
    Refuse disposal sites can also have severe environmental impacts, 
including: Acid drainage and pollution of adjacent streams resulting 
from the large amounts of pyritic materials that are often present; 
uncontrolled erosion resulting in stream siltation and downstream 
flooding; diminished aesthetic qualities, and loss of land use.
    While the amount of coal in each refuse disposal site is variable, 
there can be significant amounts remaining to be remined. Remining can 
recover the reserves while at the same time reclaiming the site to 
eliminate the safety and environmental impacts.
    We also considered whether to offer incentives for all refuse 
remining operations including both those that reprocess refuse on site 
and those that remove all on-site refuse material for reprocessing off 
site. There are several differences between abandoned coal refuse 
removal operations and on-site reprocessing operations that make 
reprocessing the refuse material off site preferable to on-site 
reprocessing. Most significantly, refuse removal operations generate 
little, if any, residual waste and no wet refuse waste, as compared to 
that generated by on-site reprocessing operations. Further, refuse 
removal operations do not require on-site reprocessing or preparation 
plants with their associated process water circuits, discharges, and 
ponds. Additionally, most refuse removal operations will be of shorter 
duration than on-site refuse reprocessing operations.
    Having considered the above factors, we are proposing, in this 
rule, to authorize waiver of reclamation fees for the remining of 
refuse disposal sites where all refuse is removed for reprocessing off 
site. We are proposing to add four provisions to our regulations at 30 
CFR to implement this remining incentive: 30 CFR 732.18, 785.26, 
870.13(d), and 872.23.
    Proposed 30 CFR 732.18 would provide that a State regulatory 
authority may submit a revision to its approved regulatory program to 
provide remining incentives under certain circumstances. This provision 
would also establish that approval by the Secretary of such a revision 
would be deemed a determination that without the incentives, the lands 
to be remined would not be likely to be remined and reclaimed. Proposed 
30 CFR 785.26 would establish procedures for a State regulatory 
authority to waive reclamation fees as incentives for remining. 
Proposed section 870.13(d) would authorize the waiver of reclamation 
fees for abandoned coal refuse remining operations that remove all 
abandoned coal refuse to an off-site location for reprocessing or 
direct use. Finally, proposed 30 CFR 872.23 would establish procedures 
for the States to amend their programs to include remining incentives 
in their Title IV and Title V programs. We will discuss each of the 
four proposed new regulations in turn below.

30 CFR 732.18

    We proposed 30 CFR 732.18 to satisfy the requirement of SMCRA 
section 415(b) that the Secretary determine, with the concurrence of 
the State regulatory authority, that, without the incentives, the 
eligible land would not

[[Page 24124]]

be likely to be remined and reclaimed. Proposed 30 CFR 732.18 provides:

    (a) This section applies to any State implementing 30 CFR 785.26 
and 870.13 providing for a waiver of reclamation fees as an 
incentive for remining.
    (b) The State regulatory authority may submit a revision to its 
approved regulatory program to provide remining incentives by waiver 
of reclamation fees pursuant to 30 CFR 785.26 and 870.13, if the 
State determines that providing such incentives will result in 
remining and reclamation of eligible lands that would not otherwise 
be likely to be remined and reclaimed.
    (c) Approval by the Secretary of the Interior of a revision to a 
State regulatory program under this section will constitute a 
determination that without the incentives pursuant to this section, 
the lands to be remined would not be likely to be remined and 
reclaimed.

    Under this proposed provision, if a State first determines that a 
regulatory program provision providing remining incentives would result 
in remining and reclamation that would not otherwise be likely, then 
approval by the Secretary of the revision would constitute the 
Secretary's determination to the same effect. This provision would 
avoid the necessity for the Secretary to concur in every waiver 
decision on a remining permit. We believe that delegating to the State 
the authority for waiver decisions is consistent with the cooperative 
federalism that is central to the SMCRA regulatory scheme. When the 
State submits an amendment to adopt these remining incentives they will 
have to include provisions to ensure that the lands to be remined would 
not likely be mined and reclaimed without these provisions. Our 
approval of the amendment would ensure that the requirements for the 
finding are included in the State's program and would establish that 
once implemented by the State, OSM would conduct oversight on these 
remining operations to ensure that the finding was being made. We are 
also considering an alternative to this language: To delegate to OSM 
Field Office Directors the authority for making this finding on a case-
by-case basis for each remining operation. We invite comment on this 
alternative.

30 CFR 785.26

    Proposed 30 CFR 785.26 is intended to implement SMCRA sections 
415(a) and (b). This section would establish procedures for a State 
regulatory authority to waive reclamation fees as an incentive for 
remining. It would require a State regulatory authority to consult with 
the State agency that administers the State reclamation program under 
Title IV and the implementing regulations at part 870, before making 
the determinations required under proposed 30 CFR 785.26(a) and (b). 
Proposed 30 CFR 785.26 provides:

    This section applies to waiver of reclamation fees by a State 
regulatory authority as an incentive for remining operations under 
part 872 of this chapter. A waiver of reclamation fees under this 
section shall apply only to production of coal by removal of 
abandoned coal mine refuse for reprocessing or direct use off site.
    (a) Consultation with the Title IV reclamation agency. You, the 
State regulatory authority, may waive reclamation fees otherwise 
required under part 870 of this chapter, provided that you first 
consult with the State agency designated to administer the State 
reclamation program under part 870 of this chapter, and make the 
following determinations:
    (1) That waiver of reclamation fees for remining of eligible 
lands under the permit would result in more reclamation of the 
eligible land than would result from expenditure of the same amount 
from the Fund.
    (2) That the eligible lands to be remined under the permit would 
not be likely to be remined and reclaimed without the waiver of 
reclamation fees as an incentive.
    (b) Eligibility. After you make the determinations under 
paragraph (a) of this section, production of coal by remining 
pursuant to a permit you issue under part 786 of this chapter will 
be eligible for a waiver of reclamation fees in accordance with part 
872 of this chapter.
    (c) Documentation. You must include in the remining case file 
for the permit:
    (1) The determinations made under paragraph (a) of this section; 
and
    (2) The information taken into account in making the 
determinations.

    This proposed rule would require that, after consultation, the 
State regulatory authority would determine whether remining under a 
permit for which a waiver of fees was requested would achieve more 
reclamation than would be achieved without the incentives. The required 
consultation and determinations are intended to assure that waivers 
could be authorized only for remining that would leverage use of moneys 
from the Fund to achieve more reclamation of eligible lands than would 
otherwise occur. If after making the determinations required under this 
section, the State regulatory authority issued a permit for remining a 
coal refuse pile to remove all abandoned coal refuse, the State 
regulatory authority could waive the reclamation fees that would 
normally be due on coal produced under that remining permit.
    In general, the proposed rule would authorize waiver of reclamation 
fees for coal recovered from abandoned coal refuse remining operations 
that remove all refuse for reprocessing or burning off site if all 
criteria in section 415 of SMCRA are met. A State that amends its 
approved program to authorize fee waivers would be required to 
document, as part of the permit application process, that a remining 
operation is eligible for a waiver of the reclamation fees and that it 
meets the provisions of section 415. The State would have to retain 
that documentation for the waiver as part of the permitting package 
subject to review by OSM pursuant to our oversight and audit 
procedures. Permittees receiving permits for abandoned coal refuse 
remining operations would be required to file the OSM-1 form as 
provided for in the Federal regulations at 30 CFR Part 870. If this 
rule becomes final as proposed, the OSM-1 would be modified to address 
waiver of the reclamation fees for tonnage reported for coal recovered 
by these remining operations. The permittee's eligibility for a waiver 
would be subject to periodic audit and review under existing procedures 
in 30 CFR 870.16. If an audit confirms that a permittee has improperly 
received a fee waiver, or an operator fails to complete reclamation of 
an abandoned coal refuse remining operation, the fee waiver would be 
cancelled and the fee imposed for all coal produced.
    The effect of this proposal on States would be to authorize 
uncertified States (i.e. States other than those States that have 
certified achievement under SMCRA section 411 of all section 403(a) 
priorities), in their discretion, to adopt State program amendments 
providing for fee waivers consistent with the proposed rule. If a State 
did amend its program to authorize fee waivers, the State would forego 
its share of the fees waived. If a State waived reclamation fees, the 
value of the waived fees would usually be offset to the extent 
abandoned coal refuse sites were reclaimed. The limit on the amount of 
fees waived for a particular remining operation should be less than the 
State's cost to reclaim the site using abandoned mine land funds. 
Therefore, the State abandoned mine land program would not have to 
expend Federal AML funds to reclaim the priority problem, and would 
realize a savings at least equivalent to the value of the fees waived. 
Additionally, a State could actually achieve more reclamation through 
remining incentives at less cost because it would not have to prepare 
designs and plans for reclamation of the coal refuse sites. Instead, 
operators would be responsible for preparing these documents as part of 
a permit application package to remine the site. Typically, the cost of 
preparing designs

[[Page 24125]]

and plans for reclaiming a coal refuse disposal area could amount to 
10% of the overall cost of a project. States could save these costs by 
having an operator remine the site and include the designs and plans in 
a permit application package.
    Waiver of reclamation fees could affect the amount of money 
available from the Fund for distributions to the States and for OSM's 
use. Waiving fees results in less money being sent to the Fund and, in 
turn, would mean less money available for distribution from the Fund. 
Therefore, a State with numerous remining sites qualifying for a waiver 
could conceivably reduce the amount of money available from the Fund 
for use by other States and OSM. While the amount of fee waivers is 
expected to be minor and the consequent impact to the Fund to also be 
minor, we are seeking comment on whether the proposed remining 
incentives would impact the ability of the States to effectively 
reclaim priority 1 and priority 2 sites.
    Effects on industry would be positive. Any companies granted a fee 
waiver would remine and reclaim abandoned coal refuse sites. If the 
remining and reclamation would not be profitable, even with a fee 
waiver, then the operators would not conduct the operation. There is a 
possibility that, in some markets, an operator selling coal from 
remined coal refuse might compete with conventionally-mined coal, but 
OSM does not anticipate that a typical refuse remining operation would 
clean and sell a large amount of refuse coal.
    The rule as proposed could have a minor effect on transfers to the 
United Mine Workers of America (UMWA) as authorized under SMCRA section 
402(h). To the extent reclamation fees are waived or rebated, a minor 
reduction in the principal of the Fund could result in a minor 
reduction in earnings.
    We are proposing to authorize waiver of reclamation fees because we 
believe that it would be simpler to administer an incentives program 
that offers a waiver, rather than a rebate. A rebate program would 
involve additional steps because it would first require an operator to 
pay reclamation fees and would require OSM to process the fees before 
they are rebated by the State from AML funds distributed to the State 
under SMCRA section 401(f) and allocated pursuant to SMCRA section 
402(g). This would result in delayed payments to operators and would 
not achieve more rapid or complete reclamation.
    Additionally, we are proposing that the waiver of fees apply only 
to operations that remove all coal refuse from the site for 
reprocessing or direct use off site. An operation that would remove 
only a portion of the refuse material from the site would not be 
eligible for a waiver. As discussed below, we believe that removal of 
all refuse material would be the most beneficial way to ensure complete 
reclamation of the site.
    We believe that our proposal could be fairly and easily implemented 
by States who elect to do so, and would result in environmental 
improvements because the incentive would encourage operators to remine 
and reclaim abandoned coal mine refuse piles.
    However, as we noted earlier, we are also seeking comments on the 
feasibility and practicality of offering reclamation fee rebates as 
provided in SMCRA section 415(c)(1)(A). Under a rebate program, 
operators would pay reclamation fees on coal recovered from abandoned 
coal refuse remining operations. An operator could then seek rebates of 
fees if the State elected to include fee rebate provisions in their 
approved program. The rebates would be paid by the State from moneys 
distributed from the Fund. In all cases, OSM would retain audit 
authority to ensure that the requirements of SMCRA section 415 were 
met.

30 CFR 870.13(d)

    We propose to add a new paragraph (d) to existing 30 CFR 870.13 to 
provide that a State may waive fees for ``abandoned coal refuse 
remining operations'' under our specified conditions.
    Proposed 30 CFR 870.13(d) provides:

    (d) Waiver of fees for abandoned coal refuse remining 
operations. The operator will not be required to pay fees for coal 
produced by an abandoned coal refuse remining operation as defined 
in Sec.  701.5 of this chapter that removes all abandoned coal 
refuse and that meets the requirements of Sec.  872.23 of this 
chapter, if the fees have been waived pursuant to Sec. Sec.  732.18 
and 785.26 of this chapter.

    Because existing 30 CFR 870.13 sets out the reclamation fee rates 
for various types of operations, we believe it would be logical to add 
this proposed provision on waiver of fee rates to it.
    This proposed rule would change OSM's current practice regarding 
the assessment of reclamation fees on coal refuse material. Generally, 
OSM does not assess fees if the refuse is demonstrated to have no value 
for fee purposes. SMCRA imposes the fees at a flat rate per ton, but 
also states that the fee shall not exceed 10 percent of the value of 
the coal at the mine, as determined by the Secretary. SMCRA section 
402(a), 30 U.S.C. 1232(a). In implementing this statutory restriction, 
OSM may find that refuse has no value in the following circumstances: 
when the operator clearly documents that the material was a by-product 
of a coal preparation process, is of low quality, has no relevant use 
other than as a waste material in a small power production or 
cogeneration facility qualified by the Federal Energy Regulatory 
Commission, and is not reprocessed using gravity separation to extract 
the useable coal. OSM also considers any other relevant factors in 
determining whether fees must be paid under section 402(a). By 
contrast, the fee waiver under this proposed rule would apply 
regardless of the material's quality and use, and the type of 
reprocessing.

30 CFR 872.23

    Proposed 30 CFR 872.23 describes the process and requirements for 
State waiver of reclamation fees. As proposed, this section provides:

    (a) The State regulatory authority may waive reclamation fees 
required under part 870 of this chapter for abandoned coal refuse 
remining operations permitted under subchapter G that remove all 
abandoned coal refuse for reprocessing or direct use off site.
    (b) The amount of the waiver provided as an incentive under 
paragraph (a) of this section to remine and reclaim eligible land 
must not exceed the estimated cost as required in 30 CFR 
780.18(b)(2) of reclaiming the eligible land.

    Consistent with SMCRA section 415, this proposed rule specifies the 
circumstances in which a waiver may be given, and also requires that 
the amount of the waiver must not exceed the estimated cost of 
reclaiming the eligible land. Under proposed 30 CFR 872.23, if an 
operator obtains a permit under Title V of SMCRA to remine abandoned 
coal refuse by removing the refuse for reprocessing or direct use from 
the site, and the State regulatory authority makes the findings 
required under proposed 30 CFR 785.26, then the operation would be 
eligible for waiver of reclamation fees on coal removed thereafter.

Additional Provisions OSM Is Considering

    As discussed below, we request comments on whether we should 
implement any other alternatives for incentives that are authorized in 
section 415, in addition to the incentives addressed in the proposed 
rule text. Under section 415 two types of remining operations could be 
eligible for a rebate or waiver of reclamation fees: Those that remove 
or reprocess abandoned coal mine waste; and

[[Page 24126]]

remining of priority 1 and priority 2 sites. This proposed rule 
addresses waiver of reclamation fees for operations that remine 
abandoned coal mine refuse and remove the refuse for direct use or 
reprocessing off site. We are not proposing a rebate or waiver of 
reclamation fees for operations that reprocess coal mine refuse on site 
without removal of the refuse from the site. An operation that 
reprocesses coal mine waste on-site would be required to reclaim any 
refuse remaining after recoverable coal is removed. This is required 
because failure to properly reclaim the refuse material could lead to 
serious environmental problems such as erosion, siltation of streams, 
and water quality issues, as well as safety concerns because of the 
potential instability of the disturbed refuse. Because of these 
potential problems from refuse left on a site, we believe a remining 
incentive that requires removal of the abandoned coal mine refuse is 
preferable. Removal should encourage rapid removal of the refuse and 
thus rapid alleviation of associated environmental and safety problems. 
However, we are considering providing for fee waivers or rebates for 
operations that reprocess abandoned coal mine refuse on site and we 
seek comments on whether such operations should also be eligible for 
waivers or rebates of reclamation fees. Commenters may wish to focus on 
the environmental benefits, if any, of reprocessing the refuse on site 
as opposed to removal of the refuse; whether incentives would encourage 
more refuse remining operations if they were applied to coal produced 
from refuse processed on site; and the relative costs and benefits of 
reclaiming the material remaining after separating coal from the refuse 
on site versus reclaiming the site after complete removal of all 
refuse.
    This proposed rule would not authorize waiver of reclamation fees 
for remining of priority 1 or 2 sites, per se. It would apply only to 
abandoned coal refuse sites; however some abandoned coal refuse sites 
may also qualify as priority 1 or 2 sites. Nonetheless, we are 
considering making priority 1 or 2 sites eligible for a waiver of 
reclamation fees. We seek comments on whether making these sites 
eligible for incentives would be likely to increase the remining and 
subsequent reclamation of such sites and whether incentives for these 
sites would be likely to meet the requirements of SMCRA section 415(a) 
and (b).
    We seek comments on alternative ways to implement the reclamation 
fee waiver provision. One alternative way to implement the waiver 
provision would be for the State to adopt a system that would provide a 
credit of reclamation fees in the full amount of the estimated cost to 
the State for reclamation of the priority 1 or 2 site or the coal 
refuse site. The credit would be applied to the site being remined, and 
if not fully utilized at that site, the balance of the credit could be 
applied to future fees otherwise payable for coal produced at other 
permits. This alternative could address situations in which coal refuse 
remining would not recover sufficient coal to ensure that a fee waiver 
would cover the full cost of reclamation. This type of incentive might 
more effectively encourage the remining of additional priority 1 or 2 
sites and coal refuse areas.
    We decided not to propose rules regarding the use of amounts in the 
Fund to provide financial assurance for remining operations in lieu of 
all or a portion of the performance bonds required under section 509. 
As we noted above, a nationwide rule that adds to, or modifies, 
existing bonding regulations would not fit well with the diversity of 
bonding systems employed in the States.
    However, in addition to the proposed rule, we are also considering 
either addressing all types of incentives specifically authorized by 
Congress in section 415, or addressing other types of incentives 
generally authorized but not specified by Congress. Therefore, we seek 
comments and information on whether any additional remining incentives 
would be practical and would be likely to materially increase 
reclamation by remining operations. However, any additional incentives 
would be subject to the restrictions in section 415 on the use of 
remining incentives.
    Finally, we request comments on the likely usefulness and 
effectiveness of remining incentives authorized in section 415 of 
SMCRA. If we determine that the record demonstrates insufficient 
interest in, or effectiveness of, remining as authorized in section 415 
we may choose not to adopt a rule authorizing incentives.

How Will This Rule Affect Approved Regulatory Programs?

    The proposed rule would authorize States to adopt similar 
provisions if they choose to, but we would not require the States to 
amend their programs.

III. Public Comment Procedures

    Electronic or Written Comments: If you submit written comments, 
they should be specific, confined to issues pertinent to the proposed 
regulations, and explain the reason for any recommended change(s). We 
appreciate any and all comments, but those most useful and likely to 
influence decisions on the final regulations will be those that either 
involve personal experience or include citations to and analyses of 
SMCRA, its legislative history, its implementing regulations, case law, 
other pertinent State or Federal laws or regulations, technical 
literature, or other relevant publications or information on what 
factors are most significant when determining the viability and 
profitability of refuse remining.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments sent to an address other than those 
listed above (see ADDRESSES) will not be included in the docket for 
this rulemaking.
    Public Availability of Comments: Before including your address, 
phone number, e-mail address, or other personal identifying information 
in your comment, you should be aware that your entire comment--
including your personal identifying information--may be made publicly 
available at any time. While you can ask us in your comment to withhold 
your personal identifying information from public review, we cannot 
guarantee that we will be able to do so.
    Public Hearings: We will hold a public hearing on the proposed 
regulations 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 
James Taitt (see FOR FURTHER INFORMATION CONTACT), either orally or in 
writing by 4 p.m., Eastern Time, on May 22, 2008. Any disabled 
individual who requires reasonable accommodation to attend a public 
hearing should also contact Mr. Taitt so that appropriate arrangements 
can be made.
    If no one has contacted Mr. Taitt to express an interest in 
participating in a hearing by that date, a hearing will not be held. If 
only a few people express an interest, a public meeting rather than a 
hearing may be held. At the public meeting, we will note any concerns 
that are expressed and a summary will be entered into the docket for 
the rulemaking.
    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

[[Page 24127]]

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.

IV. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This document is not a significant rule and the Office of 
Management and Budget has not reviewed this rule under Executive Order 
12866. We have made the assessments required by Executive Order 12866 
and the results are given below.
    (1) The provisions in the rule would not create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency.
    (2) The provisions in the rule would not alter the budgetary 
effects of entitlements, grants, user fees, or loan programs or the 
rights or obligations of their recipients.
    (3) The provisions in the rule do not raise novel legal or policy 
issues.
    (4) This rule would not have an effect of $100 million or more on 
the economy. The costs associated with this proposed rule would be in 
the form of waivers of reclamation fees that would normally be made 
part of the Fund. These costs are estimated at approximately $1.5 
million; significantly less than $100 million. The costs are estimated 
from available data that indicate that refuse piles may have a carbon 
content ranging from a low of 27.5 percent to a high of 98.9 percent of 
the original coal values that were mined. Recovery of these formerly 
``lost'' coal values, either by reprocessing or by directly burning the 
refuse, in a sense increases the nation's coal resources. Since the 
percentage of recoverable coal varies widely, we are assuming, for 
computation purposes, that the coal refuse, on average, contains from 
5,000 to 8,000 Btu/lb, or about half the Btu value of bituminous coal. 
Approximately 9 million tons of refuse is recovered/utilized annually. 
Because this material has about half the Btu value of bituminous coal, 
these 9 million tons of refuse would represent, theoretically, at least 
4.5 million tons of coal. Assuming that 4.5 million tons of coal are 
recovered from the remining of refuse piles each year, then $1,417,500 
in reclamation fees would be waived in each year through fiscal year 
2012, and $1,260,000 would be waived each year from fiscal years 2013 
through 2021. The reduced waiver amount for fiscal years 2013 through 
2021 results from the fact that the fee rate for those years has been 
set at a lower rate by law.
    The rule might result in an increase in remining operations from 
the current levels; however, the increase is not expected to be 
significant and, therefore, would not add greatly to the waiver 
estimates provided above.
    The rule would 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 rule 
would have the positive effects on the economy and the environment of 
increasing the number of coal refuse remining sites that are reclaimed, 
and of recovering coal within those sites that was unavailable for use 
because it was deposited as waste. While waiver of reclamation fees 
will reduce the amount of money in the Fund, we do not expect the 
reduction to significantly affect the ability of States to reclaim 
priority 1 or priority 2 sites.

Regulatory Flexibility Act

    The Department of the Interior certifies that the proposed rules 
would not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). The proposed rules would not have an adverse economic impact on 
the coal industry or State regulatory authorities. Further, they would 
not produce 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.
    The fee waiver contained in the proposed rule would presumably 
result in an economic benefit for the coal operator. Based on available 
data, we estimate that approximately $1,417,500 in reclamation fees 
would be waived in each year through fiscal year 2012 and $1,260,000 
would be waived each year from fiscal years 2013 through 2021.

Small Business Regulatory Enforcement Fairness Act

    For the reasons previously stated, the regulations are not 
considered ``major'' under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. The rule:
    a. Would not have an annual effect on the economy of $100 million 
or more.
    b. Would not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Would 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

    The rule would not impose an unfunded mandate on State, Tribal, or 
local governments or the private sector of more than $100 million per 
year. The rule would 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. 1501 et seq.) is not required.

Executive Order 12630--Takings

    In accordance with Executive Order 12630, the rule would not have 
takings implications that would require a takings implication analysis.

Executive Order 12988--Civil Justice Reform

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

Executive Order 13132--Federalism

    In accordance with Executive Order 13132, the rule would not have 
Federalism implications sufficient to warrant the preparation of a 
Federalism Assessment for the reasons discussed above.

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

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of the rule on Federally-recognized Indian tribes and 
have determined that the rule would not have substantial direct effects 
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.

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

    These regulations are not considered a significant energy action 
under Executive Order 13211. The proposed revisions would not have a 
significant effect on the supply, distribution, or use of energy.

Paperwork Reduction Act

    In accordance with 44 U.S.C. 3507(d), OSM has submitted the 
following

[[Page 24128]]

request for information collection and recordkeeping authority for 30 
CFR 785 to the Office of Management and Budget (OMB) for review and 
approval:
    Title: 30 CFR 785--Requirements for permits for special categories 
of mining.
    OMB Control Number: 1029-0040.
    Summary: The information is being collected to meet the 
requirements of sections 507, 508, 510, 515, 701 and 711 of Public Law 
95-87, which requires applicants for special types of mining activities 
to provide descriptions, maps, plans and data of the proposed activity. 
This information will be used by the regulatory authority in 
determining if the applicant can meet the applicable performance 
standards for the special type of mining activity.
    Bureau Form Number: None.
    Frequency of Collection: Once.
    Description of Respondents: Applicants for coal mine permits and 
State Regulatory Authorities.
    Total Annual Responses: 387.
    Total Annual Burden Hours: 24,521.
    Total Non-Wage Costs: 0.
    Under the Paperwork Reduction Act, OSM must obtain OMB approval of 
all information and recordkeeping requirements. No person is required 
to respond to an information collection request unless the form or 
regulation requesting the information has a currently valid OMB control 
(clearance) number. The control number appears in 30 CFR 785.10. To 
obtain a copy of OSM's information collection clearance request contact 
John A. Trelease at (202) 208-2783 or by e-mail at [email protected].
    Comments are invited on:
    (a) Whether the proposed collection of information is necessary for 
SMCRA regulatory authorities to implement their responsibilities, 
including whether the information will have practical utility.
    (b) The accuracy of OSM's estimate of the burden of the proposed 
collection of information.
    (c) Ways to enhance the quality, utility, and clarity of the 
information to be collected, and
    (d) Ways to minimize the burden of collection on the respondents.
    By law, OMB must respond to OSM within 60 days of publication of 
this proposed rule, but may respond as soon as 30 days after 
publication. Therefore, to ensure consideration by OMB, you must send 
comments regarding these burden estimates or any other aspect of these 
information collection and recordkeeping requirements by June 2, 2008 
to the Office of Management and Budget, Office of Information and 
Regulatory Affairs, Attention: Interior Desk Officer, via e-mail to 
[email protected], or via facsimile to (202) 395-6566. Also, 
please send a copy of your comments to John A. Trelease, Office of 
Surface Mining Reclamation and Enforcement, 1951 Constitution Ave, NW., 
Room 202 SIB, Washington, DC 20240, or electronically to 
[email protected]. Please include the OMB control number, 1029-0040, 
at the top of your correspondence.

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. 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 draft EA is on file in the docket for this 
rulemaking and may be viewed online at http://www.regulations.gov. At 
that internet address, the document is listed under ``Office of Surface 
Mining Reclamation and Enforcement.'' The EA will be completed and a 
finding made on the significance of any resulting impacts before we 
publish the final rule.

Data Quality Act

    In developing this rule we did not conduct or use a study, 
experiment, or survey requiring peer review under the Data Quality Act 
(Pub. L. 106-554).

Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

List of Subjects

30 CFR Part 732

    Intergovernmental relations, Reporting and recordkeeping 
requirements, Surface mining, Underground mining.

30 CFR Part 785

    Reporting and recordkeeping requirements, Surface mining, 
Underground mining.

30 CFR Part 870

    Abandoned Mine Reclamation Fund, Reclamation fees, Reporting and 
recordkeeping requirements, Surface mining, Underground mining.

30 CFR Part 872

    Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees, 
Surface mining, Underground mining.

    Dated: April 2, 2008.
C. Stephen Allred,
Assistant Secretary, Land and Minerals Management.

    For the reasons discussed in the preamble, we are proposing to 
amend 30 CFR Parts 732, 785, 870, and 872 as set forth below:

PART 732--PROCEDURES AND CRITERIA FOR APPROVAL OR DISAPPROVAL OF 
STATE PROGRAM SUBMISSIONS

    1. The authority citation for part 732 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.

    2. Part 732 is amended by adding Sec.  732.18 to read as follows:


Sec.  732.18  How does a State get approval to offer remining 
incentives?

    (a) This section applies to any State implementing 30 CFR 785.26 
and 870.13 providing for a waiver of reclamation fees as an incentive 
for remining.
    (b) The State regulatory authority may submit a revision to its 
approved regulatory program to provide remining incentives by waiver of 
reclamation fees pursuant to 30 CFR 785.26 and 870.13, if the State 
determines that providing such incentives will result in remining and 
reclamation of eligible lands that would not otherwise be likely to be 
remined and reclaimed.
    (c) Approval by the Secretary of the Interior of a revision to a 
State regulatory program under this section will constitute a 
determination that without the incentives pursuant to this section, the 
lands to be remined would not be likely to be remined and reclaimed.

[[Page 24129]]

PART 785--REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING

    3. The authority citation for part 785 is revised to read as 
follows:

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

    4. Part 785 is amended by adding Sec.  785.26 to read as follows:


Sec.  785.26  What are the procedures for a waiver of the reclamation 
fee for remining?

    This section applies to waiver of reclamation fees by a State 
regulatory authority as an incentive for remining operations under part 
872 of this chapter. A waiver of reclamation fees under this section 
shall apply only to production of coal by removal of abandoned coal 
mine refuse for reprocessing or direct use off site.
    (a) Consultation with the Title IV reclamation agency. You, the 
State regulatory authority, may waive reclamation fees otherwise 
required under part 870 of this chapter, provided that you first 
consult with the State agency designated to administer the State 
reclamation program under part 870 of this chapter, and make the 
following determinations:
    (1) That waiver of reclamation fees for remining of eligible lands 
under the permit would result in more reclamation of the eligible land 
than would result from expenditure of the same amount from the Fund.
    (2) That the eligible lands to be remined under the permit would 
not be likely to be remined and reclaimed without the waiver of 
reclamation fees as an incentive.
    (b) Eligibility. After you make the determinations under paragraph 
(a) of this section, production of coal by remining pursuant to a 
permit you issue under part 786 of this chapter will be eligible for a 
waiver of reclamation fees in accordance with part 872 of this chapter.
    (c) Documentation. You must include in the remining case file for 
the permit:
    (1) The determinations made under paragraph (a) of this section; 
and
    (2) The information taken into account in making the 
determinations.

PART 870--ABANDONED MINE RECLAMATION FUND--FEE COLLECTION AND COAL 
PRODUCTION REPORTING

    5. The authority citation for part 870 continues to read as 
follows:

    Authority: 28 U.S.C. 1746, 30 U.S.C. 1201 et seq., and Pub. L. 
105-277.

    6. Section 870.13 is amended by adding paragraph (d) to read as 
follows:


Sec.  870.13  Fee rates.

* * * * *
    (d) Waiver of fees for abandoned coal refuse remining operations. 
The operator will not be required to pay fees for coal produced by an 
abandoned coal refuse remining operation as defined in Sec.  701.5 of 
this chapter that removes all abandoned coal refuse and that meets the 
requirements of Sec.  872.23 of this chapter, if the fees have been 
waived pursuant to Sec. Sec.  732.18 and 785.26 of this chapter.

PART 872--ABANDONED MINE RECLAMATION FUNDS

    7. The authority citation for part 872 is revised to read as 
follows:

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

    8. Part 872 is amended by adding Sec.  872.23 to read as follows:


Sec.  872.23  Incentives for abandoned coal refuse remining operations.

    (a) The State regulatory authority may waive reclamation fees 
required under part 870 of this chapter for abandoned coal refuse 
remining operations permitted under subchapter G that remove all 
abandoned coal refuse for reprocessing or direct use off site.
    (b) The amount of the waiver provided as an incentive under 
paragraph (a) of this section to remine and reclaim eligible land must 
not exceed the estimated cost as required in 30 CFR 780.18(b)(2) of 
reclaiming the eligible land.

 [FR Doc. E8-9564 Filed 4-30-08; 8:45 am]
BILLING CODE 4310-05-P