[Federal Register Volume 85, Number 227 (Tuesday, November 24, 2020)]
[Rules and Regulations]
[Pages 75150-75191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24137]



[[Page 75149]]

Vol. 85

Tuesday,

No. 227

November 24, 2020

Part III





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement





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30 CFR Parts 733, 736 and 842





Clarification of Provisions Related to the Issuance of Ten-Day Notices 
to State Regulatory Authorities and Enhancement of Corrective Action 
for State Regulatory Program Issues; Final Rule

  Federal Register / Vol. 85 , No. 227 / Tuesday, November 24, 2020 / 
Rules and Regulations  

[[Page 75150]]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 733, 736 and 842

[Docket ID: OSM-2019-0010; S1D1S SS08011000 SX064A000 212S180110; S2D2S 
SS08011000 SX064A00 21XS501520]
RIN 1029-AC77


Clarification of Provisions Related to the Issuance of Ten-Day 
Notices to State Regulatory Authorities and Enhancement of Corrective 
Action for State Regulatory Program Issues

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

ACTION: Final rule.

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SUMMARY: On May 14, 2020, the Office of Surface Mining Reclamation and 
Enforcement (OSMRE) published a proposal to clarify the Federal 
regulations about how OSMRE notifies State regulatory authorities, via 
issuance of a ten-day notice (TDN), of possible violations of any 
requirement of the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). This final rule adopts, with minor adjustments, much of 
OSMRE's proposals to streamline the process for OSMRE's coordination 
with State regulatory authorities in order to minimize duplication of 
inspections, enforcement, and administration of SMCRA. This final rule 
comports with the specific language of SMCRA, remedies internal 
disparate application of existing regulations, and will operate to 
ensure more effective enforcement of SMCRA. Additionally, the final 
rule will enhance the procedures for early identification of, and 
implementation of corrective action to address, State regulatory 
program issues.

DATES: This rule is effective on December 24, 2020.

FOR FURTHER INFORMATION CONTACT: Kathleen G. Vello, OSMRE, Division of 
Regulatory Support, 1849 C Street NW, Mail Stop 4558, Washington, DC 
20240, telephone number: (202) 208-1908. If you use a 
telecommunications device for the deaf (TDD), call the Federal Relay 
Service at: (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Preamble Table of Contents

I. Background and Overview of the Final Rule
    A. Background
    B. Key Provisions of the Final Rule
    C. Summary of Changes Since the Proposed Rule
II. Summary of Public Comments
    A. Overview of Comments
    B. OSMRE Provided an Adequate Period To Comment on the Proposed 
Rule, and Hearings Were Not Necessary
    C. The Final Rule is Properly Characterized as a Clarification
    D. This Final Rule Neither Inhibits a Citizen's Ability To 
Report Violations to OSMRE Nor Limits OSMRE's Ability To Exercise 
Oversight Enforcement
    E. OSMRE's Authorized Representative Will Continue To Formulate 
``Reason To Believe'' As Mandated by SMCRA; This Includes Using Best 
Professional Judgment
    F. It is Important To Clarify That ``Any Information'' Under 30 
U.S.C. 1271(a) Includes Information From the State Regulatory 
Authority
    G. Citizens' Ability To Request Federal Inspections Is Not 
Diminished
    H. OSMRE's Enhancement to the Existing 30 CFR Part 733 Process 
is Aimed at Addressing State Regulatory Program Issues Early and 
Promptly Resolving the Issues
    I. Interrelationship of 30 CFR Part 733 and 30 CFR Part 842
    J. Specific Responses to Other Comments Received About the 
Proposed Rule
III. Discussion of the Final Rule and Section-by-Section Analysis
IV. Procedural Determinations
    A. Statutes
    1. Congressional Review Act
    2. Data Quality Act
    3. National Environmental Policy Act
    4. National Technology Transfer and Advancement Act
    5. Paperwork Reduction Act
    6. Regulatory Flexibility Act
    7. Small Business Regulatory Enforcement Fairness Act
    8. Unfunded Mandates Reform Act
    B. Executive Orders
    1. Executive Order 12630--Governmental Actions and Interference 
With Constitutionally Protected Property Rights
    2. Executive Order 12866--Regulatory Planning and Review and 
Executive Order 13563--Improving Regulation and Regulatory Review
    3. Executive Order 12988--Civil Justice Reform
    4. Executive Order 13045--Protection of Children From 
Environmental Health Risks and Safety Risks
    5. Executive Order 13132--Federalism
    6. Executive Order 13175--Consultation and Coordination With 
Indian Tribal Governments
    7. Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    8. Executive Order 13771--Reducing Regulation and Controlling 
Regulatory Costs
    9. Executive Order 13783--Promoting Energy Independence and 
Economic Growth

I. Background and Overview of the Final Rule

A. Background

    SMCRA requires the Secretary of the Interior, acting through OSMRE, 
to, among other things, ``publish and promulgate such rules and 
regulations as may be necessary to carry out the provisions of 
[SMCRA]'' and to ``cooperate with . . . State regulatory authorities to 
minimize duplication of inspections, enforcement, and administration of 
[SMCRA].'' 30 U.S.C. 1211(c)(2) and (12). Consistent with these 
statutory obligations, based on OSMRE's 43 years of experience 
administering SMCRA, after consultation with OSMRE's State regulatory 
authority partners, and after consideration of public comments received 
on the proposed rule, OSMRE is finalizing its proposal to enhance the 
early identification of State regulatory program issues and clarify the 
regulations found at 30 CFR 842.11 and 842.12 to state, among other 
things, that, before issuing a notification to a State regulatory 
authority when a possible violation exists, OSMRE will consider any 
information readily available. OSMRE's final rule will reduce 
inefficiencies by ensuring that, before OSMRE issues a TDN to a State 
regulatory authority, OSMRE considers any readily available information 
about the alleged violation, including information that a State 
regulatory authority may provide. OSMRE's consideration of this 
information is critical because a State regulatory authority has 
primary enforcement responsibility under its State regulatory program. 
Thus, the final rule eliminates duplication of inspection and 
enforcement under SMCRA by clarifying that OSMRE's authorized 
representative will consider all readily available information, from 
any source, including any information provided by the State regulatory 
authority, before issuing a notification of an alleged violation, in 
the form of a TDN, to that State regulatory authority. Also, the final 
rule clarifies the meaning of the statutory terms ``appropriate 
action'' and ``good cause,'' as used in 30 CFR 842.11, to better 
describe the State regulatory authority's action that will qualify as 
``appropriate action'' or scenarios in which a State regulatory 
authority's inaction may have ``good cause'' after OSMRE notification 
that a possible violation exists. Examples of what constitutes a State 
regulatory authority's ``appropriate action'' in response to a TDN or 
``good cause'' for not taking an action in response to a TDN are in the 
existing regulations;

[[Page 75151]]

however, in OSMRE's experience, the existing examples and explanations 
of what qualify as an ``appropriate action'' or ``good cause'' for 
inaction are not exhaustive and do not fully reflect the array of in-
the-field scenarios.
    In addition, because OSMRE must evaluate whether a State regulatory 
authority has taken appropriate action or has good cause for inaction 
with respect to a possible violation, OSMRE has observed that not all 
issues that are raised in the TDN process warrant a Federal 
inspection,\1\ but they may require further evaluation and action as 
they may raise issues with how a State is implementing its approved 
State regulatory program. To address these issues comprehensively and 
to ensure more complete and efficient enforcement of SMCRA, OSMRE has 
expanded 30 CFR part 733 to add procedures for corrective action of 
State regulatory program issues, including implementation of action 
plans. As finalized, 30 CFR part 733 includes definitions of the terms 
``action plan'' and ``State regulatory program issue'' and adopts a 
mechanism for early identification and corrective action to address 
State regulatory program issues. We refer to these added procedures and 
definitions in this preamble as the ``enhanced Part 733 process.''
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    \1\ A Federal inspection in the context of 30 U.S.C. 1271(a) is 
an inspection of a surface coal mining and reclamation operation 
conducted by an OSMRE authorized representative.
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    The final rule is consistent with SMCRA and will add transparency 
to OSMRE's oversight responsibilities; promote regulatory certainty for 
State regulatory authorities, regulated entities, and the public; 
enhance OSMRE's relationship with the State regulatory authorities; 
reduce redundancy in inspection and enforcement; and streamline the 
process for notifying State regulatory authorities of possible 
violations.

B. Key Provisions of the Final Rule

    OSMRE is adopting the following key provisions from the proposed 
rule in this final rule:
     Enhancement of 30 CFR part 733: Early Identification and 
Corrective Action.
    The regulations at existing 30 CFR part 733 establish requirements 
for the maintenance of State regulatory programs, as well as the 
procedures for the rare remedy of substituting Federal enforcement for 
State enforcement of State regulatory programs and withdrawing approval 
of State regulatory programs. In coordination with State regulatory 
authorities, OSMRE has determined that mechanisms exist for addressing 
identified State regulatory program issues to avoid the need to 
substitute Federal enforcement for State enforcement of a State 
regulatory program. In this final rule at Sec.  733.12, OSMRE is 
codifying this existing OSMRE practice of identifying State regulatory 
program issues and ensuring that prompt corrective action is taken.
     Clarification of Distinction Between OSMRE Enforcement 
Actions under 30 U.S.C. 1271(a) and (b).
    The TDN and Federal inspection process in 30 U.S.C. 1271(a) applies 
to oversight enforcement of alleged violations at specific sites. In 
this preamble, we refer to these types of OSMRE oversight actions (TDNs 
and Federal inspections) that OSMRE may take under 30 U.S.C. 1271(a) as 
``site-specific'' enforcement actions. Congress differentiated these 
site-specific enforcement actions from the type of actions that OSMRE 
may take under the State regulatory program enforcement provisions of 
30 U.S.C. 1271(b), which are aimed at ensuring that a State regulatory 
authority is properly enforcing its approved State program. This type 
of OSMRE oversight action under 30 U.S.C. 1271(b) is intended to 
address what we will refer to in this preamble as a ``State regulatory 
program issue'' and which could, in the most serious circumstances, 
result in revocation of all or part of a State program. OSMRE 
recognizes that its review of State regulatory authority permit 
issuance guidelines and practices generally are systemic in nature and 
that those guidelines and practices squarely fall within a State 
regulatory authority's implementation, administration, enforcement, and 
maintenance of an approved program. In this final rule, OSMRE further 
clarifies the distinction between the situations to which 30 U.S.C. 
1271(a) and (b) apply, while also recognizing that there may be 
situations in which OSMRE becomes aware of a State regulatory authority 
that is not adequately implementing, administering, maintaining, or 
enforcing a part or all of a State program (governed by 30 U.S.C. 
1271(b) and the implementing regulations at 30 CFR part 733) in the 
course of OSMRE's oversight enforcement of alleged violations at 
specific mine sites (governed by 30 U.S.C. 1271(a) and the implementing 
regulations at 30 CFR part 842). In acknowledgement of OSMRE's 
obligation to resolve 30 U.S.C. 1271(a) site-specific violations and 30 
U.S.C. 1271(b) State regulatory program issues using two separate 
mechanisms, this final rule clarifies in 30 CFR 842.11(b)(1)(ii)(B)(3) 
that a State regulatory authority may be deemed to have taken 
appropriate action in response to a TDN if corrective action to resolve 
an identified State regulatory program issue has been initiated 
consistent with the final rule Sec.  733.12.
     Nothing in This Final Rule Prevents OSMRE From Issuing A 
TDN for a Site-Specific Violation.
    Despite the two separate enforcement mechanisms outlined in 30 
U.S.C. 1271(a) and (b), these SMCRA enforcement provisions may still 
overlap in practice. As alluded to above, and discussed more thoroughly 
in response to public comments below, OSMRE maintains its legal 
position that SMCRA authorizes OSMRE to issue a TDN to a State 
regulatory authority, if a State regulatory program issue results in or 
may imminently result in a violation of an approved State program. 
Specifically, in these situations, under final Sec.  733.12(d), OSMRE 
may still take a direct site-specific enforcement action.
     Before Issuing a TDN, OSMRE Will Consider All Readily 
Available Information From Any Source.
    OSMRE proposed to clarify that when formulating a decision about 
whether there is reason to believe that a possible violation exists for 
purposes of direct enforcement under 30 U.S.C. 1271(a)(1), it will 
consider all readily available information, including information it 
receives from the State regulatory authority, about an alleged 
violation. (Throughout this preamble, we will, at times, use an 
abbreviated way of referring to this decision-making process about 
whether there is reason to believe that a possible violation exists as 
``formulating reason to believe'' or simply as ``reason to believe'' in 
quotation marks.) OSMRE is adopting this clarification in this final 
rule, with a minor modification, which specifies that OSMRE will 
consider all readily available information it receives from ``any 
source'' in order to promote more efficient and effective enforcement 
of SMCRA.

C. Summary of Changes Since the Proposed Rule

    OSMRE has made 11 revisions to the proposed rule in preparing this 
final rule. These revisions are based on a process of reasoned 
decision-making, including reliance on over 43 years of OSMRE 
experience overseeing the implementation of SMCRA, including review of 
past OSMRE data and practices, meaningful consideration of the 93 
comments received from the public, and adherence to plain language 
principles to ensure regulatory clarity. Specific details of the final 
rule are

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discussed in finer detail in the section-by-section analysis below. For 
the ease of the public, a summary of the changes from the proposed rule 
to the rule being finalized today (organized by section, brief summary 
of the change, and succinct rationale for change) include:

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             Section No.                         Brief summary of change                     Rationale
----------------------------------------------------------------------------------------------------------------
30 CFR 733.5 (definition of ``Action   Insert ``State'' before ``regulatory        OSMRE maintaining consistency
 plan'').                               authority''.                                and clarity.
30 CFR 733.12(a)(1)..................  Substitute ``any source'' for ``any         Accommodate citizen comments
                                        person''.                                   to allow the subsection to
                                                                                    be more inclusive consistent
                                                                                    with the intent of the
                                                                                    proposed rule.
30 CFR 733.12(b).....................  Change ``State regulatory program issues''  OSMRE maintaining consistency
                                        to singular ``a State regulatory program    and clarity.
                                        issue''.
30 CFR 733.12(b).....................  Substitute ``a violation of the approved    Accommodate citizen comments
                                        State program'' for ``an on-the-ground      and OSMRE evaluation to
                                        violation''.                                ensure OSMRE preserves the
                                                                                    ability to take enforcement
                                                                                    action.
30 CFR 733.12(b)(1)-(3)..............  Change ``action plans'' to singular         OSMRE maintaining consistency
                                        ``action plan'' in three instances.         and clarity.
30 CFR 733.12(c).....................  Insert ``any associated action plan''       OSMRE evaluation and
                                        after ``State regulatory program            accommodates citizen
                                        issues''.                                   comments requesting
                                                                                    transparency and review of
                                                                                    action plans that are found
                                                                                    in Annual Evaluation
                                                                                    reports.
30 CFR 733.12(c).....................  Acknowledge that Annual Evaluations         Accommodate citizen comments
                                        reports will be accessible on OSMRE's       and OSMRE evaluation to
                                        website and at the applicable OSMRE         ensure transparency to the
                                        office.                                     public.
30 CFR 733.12(d).....................  Substitute ``a violation of the approved    OSMRE evaluation and
                                        State program'' for ``an on-the-ground      accommodates citizen
                                        violation''.                                comments about State
                                                                                    regulatory program issues
                                                                                    that may also result in a
                                                                                    site-specific violation.
30 CFR 842.11(b)(1)..................  Substitute ``must'' for ``will''.           OSMRE maintaining consistency
                                                                                    with the Federal Register
                                                                                    and Plain Language Act.
30 CFR 842.11(b)(1)(i)...............  Add, ``from any source, including any       OSMRE evaluation to
                                        information a citizen complainant or the    specifically state the
                                        relevant State regulatory authority         intention of the
                                        submits,''.                                 clarification.
30 CFR 842.11(b)(2)..................  Change to conform to 30 CFR                 Accommodate citizen comments
                                        842.11(b)(1)(i).                            requesting consistency
                                                                                    between this subsection and
                                                                                    30 CFR 842.11(b)(1)(i).
----------------------------------------------------------------------------------------------------------------

II. Summary of Public Comments

A. Overview of Comments

    OSMRE received 93 written comments on the proposed rule, consisting 
of hundreds of pages of text. The majority of the comments received 
were from individuals, who reside in many different States, including 
some States that do not have coal mining. The States in which these 
commenters reside include: Alaska, California, Colorado, Illinois, 
Indiana, Kentucky, Massachusetts, Missouri, Montana, New Mexico, North 
Carolina, North Dakota, Pennsylvania, Tennessee, Texas, Utah, Vermont, 
Virginia, Washington, West Virginia, and Wyoming. The majority of the 
individual comments originated from citizens residing in Montana. The 
39 comments received from Montana residents were almost identical in 
nature. As discussed further below, these commenters generally objected 
to the proposed rule, requested an extended comment period, and 
suggested that public hearings should be held in the ``4 coal regions'' 
within the United States. Additionally, several other individual 
commenters referenced support for non-governmental organizations (NGOs) 
within their comments that generally disapproved of the proposed rule 
without giving specific rationale. For example, six commenters 
supported Coal River Mountain Watch and provided very similar comments 
opposed to the proposed rule.
    Additionally, many comments either supported other comments and 
incorporated them by reference or were submitted on behalf of multiple 
parties. Most of the comments representing multiple parties were 
submitted on behalf of NGOs. OSMRE received comments from the following 
NGOs: Alaska Center, Alaska Community Action on Toxics, Appalachian 
Citizens' Law Center, Appalachian Mountain Advocates, Appalachian 
Voices, Black Warrior Riverkeeper, Inc., Castle Mountain Coalition, 
Center for Biological Diversity (CBD), Citizens Against Longwall 
Mining, Citizens Coal Council (CCC), Coal River Mountain Watch, 
Conservation Council for Hawaii, Cook Inlet Keeper, Dakota Resource 
Council, Earthworks, Eastern Pennsylvania Coalition for Abandoned Mine 
Reclamation, Endangered Habitats League, Foundation for Pennsylvania 
Watersheds, Gila Resources Information Project, Great Old Broads for 
Wilderness, Heartwood, Kentuckians for the Commonwealth, Kentucky 
Resources Council, Inc., National Wildlife Federation, Native Plant 
Conservation Campaign, NH Audubon, Northern Plains Resource Council, 
NY4WHALES, Ohio Valley Environmental Coalition, Oil Change 
International, Powder River Basin Resource Council, Save Our Sky Blue 
Waters, Save the Scenic Santa Ritas, Sierra Club, Stand Up to Coal, The 
Lands Council, Trustees for Alaska, Turtle Island Restoration Network, 
West Virginia Highlands Conservancy, West Virginia Rivers Coalition, 
Western Nebraska Resources Council, Western Organization of Resource 
Councils, Western Watersheds Project, WildEarth Guardians, and 
Wilderness Workshop. With few exceptions, most of these commenters 
generally objected to the proposed rule, requested that the comment 
period be extended, and advocated for public hearings. A few of these 
commenters made suggestions on how to improve the proposed rule. As 
discussed in detail below, OSMRE has considered these suggestions and, 
in some circumstances, is adopting the suggestions in the final rule.

[[Page 75153]]

    The following industry and trade groups submitted comments: Indiana 
Coal Council, Kentucky Coal Association, National Mining Association 
(NMA), and Virginia Coal and Energy Alliance. Generally, as discussed 
more fully below, these commenters supported the proposed rule and made 
suggestions for improvements. In some circumstances, OSMRE is 
incorporating suggestions made by these organizations in the final 
rule.
    A few State and quasi-governmental organizations provided comments, 
including the Central Illinois Healthy Community Alliance and the 
Interstate Mining Compact Commission (IMCC) representing the following 
27 States: Alabama, Alaska, Arizona, Arkansas, Colorado, Illinois, 
Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, 
New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, 
Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, West 
Virginia, and Wyoming. One of these commenters was generally opposed to 
the proposed rule, while the other, IMCC, supported the proposed rule.

B. OSMRE Provided an Adequate Period To Comment on the Proposed Rule 
and Hearings Were Not Necessary

    OSMRE provided a 30-day comment period for the proposed rule. OSMRE 
received many comments requesting an extension of the comment period 
from an additional 30 days to an additional 180 days. One commenter, 
citing one of the purposes of SMCRA at 30 U.S.C. 1202(i), essentially 
suggested that the alleged absence of ``a reasonable comment period'' 
deprived the public of meaningful participation in this rulemaking. 
OSMRE is aware of this statutory provision, but, as explained below, 
finds that the 30-day comment period was adequate for meaningful 
participation in this rulemaking. In contrast to the other commenters, 
a commenter stated that this rule was ``long overdue'' and that 
``additional time is not necessary for the formulation and submittal of 
comments on a 14-page Federal Register notice.'' Additionally, many 
commenters requested that public hearings--virtual or in person when 
``safe''--be held, and many of those commenters, particularly the 39 
commenters from Montana, requested that at least four public hearings 
be held in different coal regions across the country. Other commenters 
suggested that SMCRA requires OSMRE to offer to hold public hearings 
for rulemakings affecting SMCRA's permanent regulatory program. These 
commenters opine that holding public hearings has been the standard and 
expected practice.
    Section 553(c) of the Administrative Procedure Act (APA) requires 
that agencies, such as OSMRE, provide ``interested persons an 
opportunity to participate in the rule making through submission of 
written data, views, or arguments with or without an opportunity for 
oral presentation.'' 5 U.S.C. 553(c). Notably, the APA does not contain 
a requirement to hold public hearings. It is squarely within OSMRE's 
discretion to decline to either extend the comment period or offer 
public hearings or meetings. Additionally, the Office of the Federal 
Register states that comment periods generally last 30 to 60 days. See 
Office of the Federal Register, ``A Guide to the Rulemaking Process,'' 
available at https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf (last accessed August 12, 2020). As 
discussed above, OSMRE received a diverse set of substantive comments 
from a diverse set of commenters within the 30-day comment period. 
Based on this and several other reasons, regardless of what other 
agencies have done with regard to extension requests, the public had a 
meaningful opportunity to comment with sufficient time to prepare their 
comments.
    First, OSMRE's proposed revisions would not significantly alter 
OSMRE's implementation of the SMCRA program. As stated in the proposed 
rule, the proposed changes were primarily intended to clarify a 
potential ambiguity in OSMRE's existing regulations, eliminate 
duplicative efforts of OSMRE and the State regulatory authorities when 
responding to citizen complaints, and enhance procedures for corrective 
action of State regulatory program issues. See, e.g., 85 FR at 28905, 
28910. Previously, OSMRE has addressed these issues through guidance 
documents, such as the memorandum from Director Joseph G. Pizarchik to 
Regional Directors regarding Application of the Ten-Day Notice Process 
and Federal Enforcement to Permitting Issues Under Approved Regulatory 
Programs, which were issued without any opportunity for advance public 
comment. Memorandum from Director Joseph G. Pizarchik (Nov. 15, 2010). 
By addressing these issues through the APA rulemaking process, OSM has 
provided the public an opportunity to comment.
    Second, the proposed rule proposed to make only limited changes to 
the Federal regulations. The changes OSMRE proposed primarily occurred 
in three sections--30 CFR 733.12, 842.11, and 842.12. The other 
proposed changes were conforming changes. If this rule was significant, 
the Office of Information and Regulatory Affairs (OIRA) in the Office 
of Management and Budget (OMB) would have classified it as such; 
however, it has not because this final rule is not expected to have a 
$100 million annual impact on the economy, raise novel legal issues, or 
create significant impacts. See ``Procedural Determinations'' below.
    Third, as stated in section 6(a)(1) of Executive Order (E.O.) 
12866, ``before issuing a notice of proposed rulemaking, each agency 
should, where appropriate, seek the involvement of those who are 
intended to benefit from and those expected to be burdened by any 
regulation (including, specifically, State, local, and tribal 
officials).'' The State regulatory authorities were the parties most 
likely to be affected if the changes in the proposed rule were 
finalized. As such, before publishing the proposed rule, OSMRE involved 
the State regulatory authorities by seeking their suggestions on what 
the proposed rule should accomplish. For example, as part of a program 
efficiency work group, OSMRE requested that State regulatory 
authorities provide information about the number of citizen complaints 
received; the number of TDNs received; whether duplication exists 
between citizen complaints the State regulatory authority receives 
directly from citizens and TDNs received from OSMRE; and the amount of 
time State regulatory authority personnel expend responding to TDNs and 
citizen complaints that the State regulatory authority receives 
directly from citizens. In addition, OSMRE directly engaged with its 
State regulatory authority partners by requesting input on the 
development of internal OSMRE guidance about TDNs, which, when 
finalized, were made publicly available on OSMRE's website at https://www.osmre.gov/lrg/directives.shtm.
    Comment: Although most of the commenters seeking extensions of time 
or public hearings were general in nature, some of the commenters 
provided specific rationales for the requests for extensions of time or 
public hearings. In most circumstances, these specific requests for 
extensions of time or hearings were prompted by the impacts of the 
COVID-19 pandemic, including the potential for lack of access to the 
internet due to library closures and obligations associated with caring 
for family members infected with COVID-19. Some of these commenters 
cited other Federal agencies' decisions to extend comment periods 
because of COVID-19. Other commenters supported an extension of the 
comment

[[Page 75154]]

period because the 30-day comment period included the Memorial Day 
holiday. Finally, as indicated above, a group of commenters suggested 
that 30 U.S.C. 1251(b), through its reference to section 1251(a), 
requires OSMRE to offer to hold public hearings for rulemakings 
affecting SMCRA's permanent regulatory program. These commenters also 
opine that holding public hearings has been the standard and expected 
practice.
    Response: OSMRE recognizes that the comment period for this rule 
occurred during the COVID-19 pandemic, which may have changed the 
manner in which people and organizations would have traditionally 
reviewed and submitted comments on the proposed rule. Although it is 
true that the pandemic may have changed operating procedures, it is 
also true that OIRA recognized that ``work on behalf of the American 
people must continue during this period, including work on regulations 
. . . .'' See Memorandum from Paul J. Ray, OIRA Administrator (March 
23, 2020). OIRA, therefore, declined to issue a ``wholesale extension 
of the comment periods of pending notices of proposed rulemakings . . . 
.'' Id. Despite the hardships posed by the pandemic and the existence 
of a Federal holiday within the comment period, OSMRE received 93 
comments from a representative group of interests. In total, these 
comments presented a thorough examination of the limited number of 
changes proposed, and the commenters did not appear to be hampered by 
the length of the comment period.
    In addition, OSMRE disagrees with the comment that SMCRA, at 30 
U.S.C. 1251(b), requires OSMRE to offer to hold public hearings for 
rulemakings such as this one. On its face, section 1251(b) applies to 
the permanent regulatory program that OSMRE promulgated long ago. While 
OSMRE can still hold public hearings with regard to proposed rules that 
are published after the permanent program regulations were promulgated, 
it is not required to do so. For many of the same reasons a 30-day 
comment period was adequate, including receipt of a diverse set of 
substantive comments from a diverse set of commenters within the 30-day 
comment period, OSMRE also finds that public hearings were not 
necessary to inform OSMRE of the various issues and viewpoints at play. 
Instead, as explained above, OSMRE obtained a full range of comments 
from a diverse group of commenters. In sum, OSMRE values public 
participation in its rulemaking efforts and finds that there was 
reasonable and adequate public participation in this particular 
rulemaking.
    Comment: A few commenters stated that OSMRE should extend the 
comment period beyond 30 days because Federal employees' teleworking 
arrangements as a result of the COVID-19 pandemic impinged on the 
commenting process.
    Response: Despite the challenges posed by the COVID-19 pandemic, 
OSMRE has been diligent in responding to inquiries regarding the 
proposed rulemaking either via email or telephone. As previously 
stated, OIRA has made clear that ``work on behalf of the American 
people must continue during this period, including work on regulations 
. . . .'' See Memorandum from Paul J. Ray, OIRA Administrator (March 
23, 2020). OSMRE did not shut down or stop its work on behalf of the 
American people as a result of the COVID-19 pandemic. As is its 
customary practice, OSMRE specified the methods for submitting comments 
in the proposed rule. 85 FR at 28904. This included submission of 
comments via regulations.gov or hard copy. The submission of comments 
on regulations.gov was not affected by the pandemic, and OSMRE 
personnel still regularly collected the comments that were submitted in 
hard copy.
    Comment: A few commenters cited the Native American population as 
being disproportionally affected by the COVID-19 pandemic. According to 
commenters, many of these same population centers are located adjacent 
to coal mine sites, are affected by the coal mine operations, and need 
to voice their comments on the proposed rulemaking. Commenters cited 
the lack of developed information technology infrastructure and 
widespread COVID-19 illnesses within the Native American community as 
sufficient reasons to extend the comment period. OSMRE appreciates the 
commenters' focus on, and is sensitive to, the COVID-19 pandemic's 
effect on Native American populations.
    Response: No Tribe currently has primacy to regulate surface coal 
mining operations within its jurisdiction. Because this rule relates to 
OSMRE's enforcement in primacy States, these revisions will have no 
direct impact on any Tribe. Once a Tribe obtains primacy, that Tribe 
would be in the same position as a State regulatory authority. 30 
U.S.C. 1300(j). Therefore, OSMRE would consider information from a 
Tribal regulatory authority, just as OSMRE considers information from a 
State regulatory authority, in determining whether to issue a TDN to 
the Tribal regulatory authority. Despite this final rule not affecting 
any Tribe directly, OSMRE directly engaged with the three Indian Tribes 
that have either expressed an interest in achieving primacy or that 
have traditionally had surface coal mining operations--the Navajo 
Nation and the Hopi and Crow Tribes. See ``Procedural Determinations,'' 
E.O. 13175--Consultation and Coordination With Indian Tribal 
Governments, below. In addition, Tribes were able to comment on the 
proposed rule. To the extent the commenters were concerned about the 
rule's effects on individual Native Americans, as opposed to Indian 
Tribes, OSMRE's final rule will not hamper any citizen's ability to 
submit a citizen complaint to OSMRE. Thus, any citizen, including a 
Tribal member, can continue to raise concerns to OSMRE about potential 
SMCRA violations.
    Comment: One commenter cites the ongoing improvements to 
regulations.gov, one of the methods of submitting comments on the 
proposed rule to OSMRE, as a rationale for extending the comment 
period.
    Response: OSMRE is aware that regulations.gov has been undergoing 
beta testing since July 2019, and it is fully cooperating with the U.S. 
General Services Administration (GSA) in its ongoing efforts to improve 
the experience of a user while participating in the Federal government 
rulemaking process. Contrary to the commenter's assertions, the core 
functionality of regulations.gov has not been affected by the beta 
testing. In fact, the regulations.gov site has merely been updated to 
be more accessible to the public and improve the public interface. GSA 
has characterized the beta testing and associated improvements as 
efforts to create transparency and expose the public to improvements 
contemplated for the website and to solicit feedback. See Beta 
Frequently Asked Questions available at https://beta.regulations.gov/faq?type=beta (last accessed August 17, 2020). Moreover, the standard 
regulations.gov site is still available, and users may choose the 
``classic'' version if they prefer. Id. Therefore, the improvement 
process for regulations.gov was not a basis for extending the comment 
period.
    For all of these reasons, including the limited nature of this 
rulemaking and the sufficient time available to provide meaningful 
comment, as evidenced by the diverse and thorough comments received, 
neither an extension of time nor public hearings were warranted.

[[Page 75155]]

C. This Final Rule is Properly Characterized as a Clarification

    In the proposed rule, OSMRE characterized the provisions related to 
30 CFR part 842 as clarifications because OSMRE primarily sought to 
remove ambiguity as to what information should be considered by the 
OSMRE authorized representative when formulating reason to believe that 
any person is in violation of any requirement of [SMCRA] or any permit 
condition required by [SMCRA].'' 30 U.S.C. 1271(a). Many commenters 
objected to OSMRE's use of the term clarification to describe the 
changes to part 842; however, some industry commenters supported this 
characterization. OSMRE maintains that clarification is an appropriate 
descriptor. As discussed in more detail in specific comment responses 
below, several citizen group commenters alleged that OSMRE invented 
ambiguity in the existing regulations where none existed to justify the 
regulatory changes. OSMRE strongly disagrees with this assertion.
    Due to the complex nature of SMCRA, and coal mining in general, 
ambiguity has arisen about how OSMRE should perform some of its 
oversight functions. Through this final rulemaking, OSMRE is seeking to 
end any ambiguity. Notably, over the years, OSMRE has had varying 
interpretations of how to administer 30 U.S.C. 1271(a) and the 
implementing regulations at 30 CFR part 842. An example of disparate 
implementation of the existing regulations by OSMRE is evidenced by the 
fact that OSMRE has revised its primary Directive on the TDN process, 
INE-35, eight times in 33 years--an average of approximately once every 
four years--each time without taking prior public comment. Tellingly, 
the various interpretations documented within OSMRE policy have the 
common theme of attempting to define the right balance of expertise and 
professional discretion and due diligence. With this final rulemaking, 
OSMRE has achieved better balance. In proposing this rule, OSMRE 
closely examined the concepts of expertise and professional discretion 
and due diligence in its enforcement of SMCRA. For example, when 
considering an early draft of SMCRA, the House of Representatives 
recognized the importance of formulating ``reasonable belief'' based on 
available information.

    When the Secretary receives information from any source that 
would give rise to a reasonable belief that the standards of the Act 
are being violated, the Secretary must respond by either ordering an 
inspection by Federal inspectors during the interim period or, after 
the interim, notice to the States in the follow-up inspection that 
the State's response is inadequate. It is anticipated that 
``reasonable belief'' could be established by a snapshot of an 
operation in violation or other simple and effective documentation 
of a violation.

H.R. Rep. No. 93-1072, at 11 (May 20, 1974).
    If OSMRE simply passes along a citizen complaint without 
considering available information, it is not establishing the requisite 
reasonable belief that was Congress' intent. Congress recognized the 
value of relying on the professional competence and capacity of OSMRE 
staff to ensure effective and efficient processing of citizen 
complaints. In fact, the Senate Report recognized the importance of 
OSMRE experts in achieving the twin goals of efficiency and 
effectiveness for State enforcement programs:

    Efficient enforcement is central to the success for the surface 
mining control program contemplated by S.7. For a number of 
predictable reasons--including insufficient funding and the tendency 
for State agencies to be protective of local industry--State 
enforcement has in the past often fallen short of the vigor 
necessary to assure adequate protection of the environment. The 
Committee believes, however, that the implementation of minimal 
Federal standards, the availability of Federal funds, and the 
assistance of the experts in the Office of Surface Mining 
Reclamation and Enforcement in the Department of Interior, will 
combine to greatly increase the effectiveness of State enforcement 
programs operating under the Act. While it is confident that the 
delegation of primary regulatory authority to the States will result 
in adequate State enforcement, the Committee is also of the belief 
that a limited Federal oversight role as well as increased 
opportunity for citizens to participate in the enforcement program 
are necessary to assure that the old patterns of minimal enforcement 
are not repeated.

    S. Rep. No. 95-128, at 90 (May 10, 1977). These factors have 
weighed heavily in OSMRE's analysis and the formulation of this final 
rule. In order to achieve an effective balance of these concepts, OSMRE 
has always focused on the mandates of SMCRA, including expeditious 
enforcement. In the final rule, OSMRE's clarifications act to resolve 
the internal struggle to exercise expertise and professional judgment 
and due diligence to best implement the existing regulations at 30 CFR 
part 842, despite the potential ambiguities contained within those 
regulations. Strategies employed in versions of the INE-35 Directive 
have included various interpretations of the ``reason to believe'' 
standard, what constitutes appropriate action, and how to address 
various types of violations. The regulations that OSMRE is finalizing 
today aim to remove the potential ambiguity related to the ``reason to 
believe'' standard that made those various interpretations possible. 
OSMRE's final rule is crafted to create a more uniform, efficient, and 
transparent process for resolving citizen complaints. These changes do 
not diminish the public's access to enforcement or reinvent the TDN 
process.
    In response to a commenter's suggestion that OSMRE should provide 
objective support for this rule, including data, OSMRE notes that it 
proposed this rulemaking to clarify issues raised by State regulatory 
authorities and identified by OSMRE's own experience. Additionally, a 
goal of the proposed rulemaking is to ensure OSMRE uniformly applies 
the statute and regulations and no disparate application occurs within 
the agency. Recognizing that there may have been inconsistent 
application of the existing regulations, analysis of past data is not 
germane to the rulemaking as the commenter suggests. For example, if 
various OSMRE authorized representatives applied the existing 
regulatory language inconsistently, relying on data related to the 
number of citizen complaints that led to the issuance of TDNs would not 
illustrate how those authorized representatives might have interpreted 
the existing regulations in formulating ``reason to believe''. Because 
ensuring that information from the State regulatory authority is 
considered when formulating ``reason to believe'' is a major component 
of this final rule, revisiting individual TDN analyses under previous 
interpretations of the existing regulations or internal OSMRE policies 
is not useful or informative.
    OSMRE's clarifications harmonize the implementing regulations with 
congressional intent. These improvements were needed because one 
possible interpretation of 30 CFR 842.11(b)(2) was that OSMRE's 
authorized representative was required to find that reason to believe 
that a violation exists whenever any information submitted to OSMRE 
would, if true, constitute a violation. Under this possible 
interpretation, OSMRE would merely serve as a conduit to the State 
regulatory authority, eviscerating the authority bestowed upon OSMRE by 
Congress to act with ``professional competence and capacity to 
administer the provisions of [SMCRA].'' 30 U.S.C. 1211(a). In practice, 
if this interpretation were implemented, OSMRE would almost always be 
required to immediately issue a TDN to the State regulatory authority.

[[Page 75156]]

This interpretation removes any aspect of an OSMRE authorized 
representative's discretion and prevents the authorized representative 
from exercising best professional judgment. OSMRE's clarification 
reduces ambiguity in the regulations that could lead to this 
unwarranted interpretation. Instead, the final rule makes clear that 
OSMRE's authorized representative, a qualified, trained, professional 
with SMCRA expertise, is in the best position to consider all readily 
available information available to him or her before making a 
determination about whether there is reason to believe a violation 
exists before deciding whether to issue a TDN. Instead of simply 
accepting what is submitted to OSMRE as true, under this final rule, 
OSMRE's authorized representative can review all readily available 
information, regardless of the source of that information. This change 
also better aligns the Federal regulations with the carefully crafted 
language of 30 U.S.C. 1271(a), and, as explained below, reduces 
duplication of effort between OSMRE and a State regulatory authority as 
mandated by 30 U.S.C. 1211(c)(12).
    The ambiguity in the regulations was leading to inconsistent 
interpretations of the ``reason to believe'' standard in the 
regulations. As discussed more thoroughly below, the comments to the 
proposed rule illustrate the inconsistent interpretations that existed 
within OSMRE and among the State regulatory authorities, citizens, and 
industry. Some have interpreted the regulatory standard in a way that 
would make OSMRE a mere conduit of citizen complaints to the State 
regulatory authority while others interpreted the regulatory ``reason 
to believe'' standard to evoke more discretion, in the form of OSMRE's 
authorized representative exercising professional judgment. 
Additionally, there have been varying views about the type of 
information that OSMRE's authorized representative should consider and 
from whom that information originates, with some groups claiming that 
OSMRE should only consider citizen information while others found it 
essential that OSMRE also consider information provided by the State 
regulatory authority--the primary SMCRA enforcement authority under 
approved State programs. This inconsistency has manifested itself in 
the various internal directives that OSMRE has issued throughout the 
years, which have contained various interpretations of the regulations 
regarding, among other things, what information should be considered 
when determining if the OSMRE authorized representative has a ``reason 
to believe.''
    With the assistance and comments of OSMRE's State regulatory 
authority partners, citizens, and industry, OSMRE identified these 
inconsistent interpretations as significant enough to warrant a 
resolution through a clarifying rulemaking.
    Comment: A commenter expressed concern that the current TDN process 
was not working and gave an example of a TDN that seemingly took many 
years to resolve. The commenter further opined that the proposed 
rulemaking was not a step in the right direction and will result in 
``protracted delays'' of enforcement to correct on-the-ground issues.
    Response: OSMRE agrees with the commenter that the existing process 
needed to be clarified to avoid unnecessary delays, and that is one of 
the reasons why OSMRE is issuing this final rule. OSMRE notes that this 
final rule will improve the TDN process by, among other things, 
increasing collaboration and coordination between OSMRE and the State 
regulatory authorities. OSMRE acknowledges that, historically, there 
have been challenges associated with the TDN process, and sometimes TDN 
issues were not resolved as quickly as OSMRE would have liked. However, 
while this final rule will not eliminate all future delays in TDN 
outcomes, just as the existing regulations did not, this final rule is 
intended to enhance the overall efficiency of the TDN process going 
forward in addressing violations. Because State regulatory program 
issues will be more appropriately addressed through the enhanced Part 
733 process, rather than through the TDN process, OSMRE and the State 
regulatory authorities will be able to focus more quickly on site-
specific violations that arise.
    To be clear, neither the proposed rule nor the final rule 
substantively impacts the TDN process. Instead, in the final rule, 
OSMRE removes ambiguity by clarifying that the OSMRE authorized 
representative can review information received from any source, 
including the State regulatory authority, when deciding whether he or 
she has reason to believe a violation exists as contemplated by SMCRA. 
30 U.S.C. 1271(a). When an OSMRE authorized representative has reason 
to believe a violation exists, the information about the alleged 
violation will continue to be transmitted to the State regulatory 
authority via a TDN. The distinction between the existing regulations 
and the final rule is that, under the final rule, the OSMRE authorized 
representative will consider all readily available information when 
formulating reason to believe. Most importantly, all readily available 
information includes information that the OSMRE authorized 
representative may receive from the State regulatory authority.
    OSMRE also notes that some of the other revisions that OSMRE 
proposed and is finalizing today, namely the enhancement to 30 CFR part 
733 related to State regulatory authority action plans to address State 
regulatory program issues, are a variation of an administrative process 
that has been contained in OSMRE's Directives REG-8 and REG-23 since as 
early as 1988. Given OSMRE's longstanding use of these action plans, 
the changes to these regulations also are not a material alteration of 
the administrative process that OSMRE has already used to interact with 
State regulatory authorities to enforce SMCRA. OSMRE is codifying these 
practices to avoid ambiguity about when these State regulatory 
authority corrective action plans are appropriate to use.
    In summary, Merriam-Webster Dictionary defines clarify as, ``to 
make understandable; to free from confusion.'' See Clarification, 
Merriam Webster Online Dictionary, available at merriam-webster.com/dictionary/clarification (last accessed August 14, 2020). Because of 
the varying interpretations of what information may be considered when 
formulating reason to believe, not only by SMCRA stakeholders, but by 
OSMRE itself, a clarification is certainly warranted. Moreover, 
codifying the enhancements to early identification of corrective action 
to address State regulatory program issues will remove ambiguity as to 
when this process should be applied. OSMRE finds it essential to be 
transparent and make the regulations ``understandable'' and ``free from 
confusion'' so that the TDN process pursuant to 30 U.S.C. 1271(a) and 
the enhanced 30 CFR part 733 process pursuant to 30 U.S.C. 1271(b) work 
efficiently and effectively. This clarification is necessary to remove 
ambiguity.

D. This Final Rule Neither Inhibits a Citizen's Ability To Report 
Violations to OSMRE Nor Limits OSMRE's Ability To Exercise Oversight 
Enforcement

    OSMRE received comments that evidence a misconception by many 
commenters that the changes OSMRE proposed, if finalized, would alter 
the obligations of 30 U.S.C. 1271. As discussed below, in response to 
specific comments, the statutory obligations under SMCRA are not 
altered by this rulemaking, and OSMRE will continue

[[Page 75157]]

to take action on citizen complaints and engage in oversight 
enforcement consistent with statutory mandates and the Federal 
regulations.
    Comment: Many commenters, including citizen group commenters, 
suggested that the proposed rule clarification would eliminate the 
ability of the public to report violations directly to OSMRE. According 
to several commenters, the proposed clarification would alter the 
process citizens would use to report alleged violations, make it 
prohibitively difficult, impair enforcement, and would lengthen the 
amount of time for a State regulatory authority to respond to a TDN 
from 10 days to unlimited, and make a TDN response from the State 
regulatory authority discretionary instead of mandatory. A commenter 
also opined that the clarification of the TDN process that OSMRE 
proposed explicitly contradicts the letter and intent of SMCRA. 
Similarly, another commenter suggested that, under the proposal, OSMRE 
would be able to simply ignore complaints against mining companies.
    Response: OSMRE disagrees with the premise of these comments. The 
rule, as proposed and finalized today, does not materially alter the 
manner in which OSMRE already enforces SMCRA. Specifically, OSMRE 
disagrees with the commenters who suggested that the proposed 
provisions and clarifications in 30 CFR parts 733 and 842 would impair, 
weaken, or eliminate the ability of the public to report violations 
directly to OSMRE. To the contrary, the public will be able to continue 
to report possible violations directly to OSMRE, and OSMRE will 
continue to take such complaints seriously and issue a TDN to the State 
regulatory authority when appropriate. OSMRE's consideration of all 
readily available information before issuing a TDN will make the 
process more efficient and effective by making correction of the 
violation the objective.
    Indeed, the purpose of this final rule is to ensure that both 
alleged violations and potential State regulatory program issues are 
corrected promptly and effectively. After working closely with State 
regulatory authority partners for over 40 years, OSMRE has learned 
that, within the cooperative federalism framework established by SMCRA, 
effective enforcement requires close cooperation with primacy states. 
Furthermore, OSMRE notes that the United States Supreme Court has 
recognized that SMCRA has established a system of cooperative 
federalism involving an essential relationship between OSMRE in an 
oversight capacity and State regulatory authorities. In Hodel v. Va. 
Surface Mining and Reclamation Ass'n, 452 U.S. 264, 289 (1981) (citing 
In re Permanent Surface Min. Regulation Litigation, 617 F.2d 807, 808 
(1980)), the Supreme Court explained that SMCRA ``established a program 
of cooperative federalism that allows the States, within limits 
established by federal minimum standards, to enact and administer their 
own regulatory programs, structured to meet their own particular 
needs.'' Given the unique nature of cooperative federalism embodied in 
SMCRA, coupled with the specific requirements within SMCRA to consider 
``any information available'' when formulating reason to believe in the 
TDN context, it makes sense for OSMRE to consider available information 
from the State regulatory authority. 30 U.S.C. 1271(a)(1).
    OSMRE's clarification in the final rule to provide explicitly that 
OSMRE will consider all ``readily available information,'' including 
any information that a State regulatory authority provides, promotes 
the goal of ensuring that the entities with primary jurisdiction over 
respective State programs supply OSMRE with information essential to 
its assessment of alleged violations. After OSMRE considers readily 
available information, including any information that a State 
regulatory authority provides, OSMRE will continue to make an 
independent assessment regarding whether it has reason to believe a 
possible violation exists. Further, the basic principle of SMCRA and 
the implementing regulations at 30 CFR 842.11 remains unchanged--OSMRE 
will continue to issue a TDN to a State regulatory authority when it 
concludes there is reason to believe a violation exists. As OSMRE 
explained in the proposed rule, and as embodied in this final rule, any 
information that OSMRE considers must be ``readily'' available to 
ensure that the process proceeds as quickly as possible and does not 
become open-ended.
    The existing regulations at 30 CFR 842.12(a) already require that, 
if a citizen requests a Federal inspection, then the citizen is 
required to notify a State regulatory authority of a possible violation 
before or simultaneously with notification to OSMRE. In fact, OSMRE's 
proposal, and ultimately this final rule, is fundamentally no different 
from the existing rule because it retains language that requires 
citizens to notify the State regulatory authority prior to, or 
simultaneously with, reporting violations to OSMRE. The language in 
existing 30 CFR 842.12(a) requires citizens, as part of a request for 
Federal inspection, to do several things, including furnishing OSMRE 
with ``a signed, written statement . . . giving the authorized 
representative reason to believe that a violation, condition or 
practice referred to in Sec.  842.11(b)(1)(i) exists and that the State 
regulatory authority, if any, has been notified . . . .''
    Moreover, contrary to some commenters' assertions that this 
proposed rule clarification would institute a new requirement for 
citizen complainants to contact the State regulatory authority before 
requesting a Federal inspection under section 842.12, the requirement 
for citizens to contact the State regulatory authority, before or 
simultaneously with a request to OSMRE for a Federal inspection, has 
been in 30 CFR 842.12(a) since August 16, 1982. 47 FR 35620. Because 
OSMRE continues to believe, as OSMRE has since 1982, that most alleged 
violations will be resolved by a State regulatory authority without 
intrusion by OSMRE (47 FR at 35628), OSMRE strongly encourages a 
citizen also to report a violation to the State regulatory authority 
first. However, neither the proposed rule nor the final rule mandates 
that a citizen report an alleged violation to the State regulatory 
authority before reporting it to OSMRE. The proposed rule 
clarification, which is adopted in this final rule, does not change or 
alter the requirement for citizen complainants to contact the State 
regulatory authority before or simultaneously with requesting a Federal 
inspection from OSMRE.
    SMCRA confers exclusive jurisdiction upon a State regulatory 
authority after that State has achieved primacy. See Bragg v. W. Va. 
Coal Ass'n, 248 F.3d 275, 288 (4th Cir. 2001) (explaining that once a 
State achieves primacy, it has `` `exclusive jurisdiction over the 
regulation of surface coal mining' within its borders'') (citing 30 
U.S.C. 1253(a)). However, a State's exclusive jurisdiction is subject 
to the statutory exceptions outlined in SMCRA sections 521 and 523 and 
Title IV of SMCRA, 30 U.S.C. 1271, 1273, and 1231-1244. Given the 
prominent role that the States play in administering and enforcing 
SMCRA, OSMRE has found, in its experience, that including a State 
regulatory authority early in the process is advantageous to both the 
State regulatory authority and OSMRE because it reduces duplicative 
efforts to address potential violations. In OSMRE's experience, when a 
citizen first contacts the State regulatory authority, violations are 
often promptly and effectively resolved without OSMRE's direct 
involvement.
    In OSMRE's experience implementing SMCRA, it has witnessed 
instances

[[Page 75158]]

when citizens filed complaints for the same or similar alleged 
violations on the same permit with both the State regulatory authority 
and OSMRE. Resolution of the violation was not efficient or effective 
because the State regulatory authority was simultaneously trying to use 
the same resources to respond to the citizen complaints and the various 
TDNs issued by OSMRE. For example, in one instance, OSMRE issued six 
TDNs on the same permit in less than six months. Instead of focusing 
directly on correcting the alleged violations at the site, both OSMRE 
and the State regulatory authority were subsumed by the paperwork 
exercise of issuing TDNs, responding to TDNs, and evaluating the 
State's responses to the TDNs; correcting the alleged violations became 
secondary to following the TDN process. Specifically, under one 
interpretation of the ``reason to believe'' standard in the existing 
regulations, the OSMRE authorized representative considered information 
in OSMRE's possession but ultimately issued separate TDNs, 
automatically assuming the allegations in the complaints to be true and 
without considering all readily available information--most 
importantly, the information that the State regulatory authority, with 
primary regulatory authority over the mine site, had available. Because 
the State regulatory authority knows its specific permits best, this is 
a perfect example of why considering any information the State 
regulatory authority provides is essential. In the anecdote above, had 
the State regulatory authority provided all ``readily available 
information'' to OSMRE up front, both OSMRE and the State regulatory 
authority could have better understood the alleged violations, 
cooperated effectively, and spent valuable time and resources 
addressing the alleged violations and not simply generating duplicative 
paperwork. Tellingly, in this example, the OSMRE field office 
ultimately found no violations of the approved program. The citizens 
filed a request for informal review with an OSMRE regional director, 
and, ultimately, the regional director affirmed the OSMRE field 
office's original decision. This duplication of effort unnecessarily 
diminished OSMRE and State regulatory authority resources that could 
have better been directed to resolving real issues, not merely 
preparing and exchanging paperwork. Thus, under this final rule, OSMRE 
must consider all readily available information, including any 
information the State regulatory may provide, when the authorized 
representative determines whether there is reason to believe that a 
violation exists.
    As noted above, the removal of the language that essentially 
required OSMRE to automatically accept citizen complaints as true 
removes a potential ambiguity in the existing regulations and clarifies 
the information OSMRE can consider in forming a ``reason to believe.'' 
Finalizing the rule in this manner does not hinder the ability of 
citizens to report a violation directly to OSMRE. Because the 
regulations continue to require that the citizen notify the State 
regulatory authority before or simultaneously with requesting that 
OSMRE initiate a Federal inspection, a primacy State will have an 
opportunity to address an alleged violation before OSMRE, which is 
advantageous because the State regulatory authorities are more familiar 
with the operations in their States and can typically respond to 
alleged violations faster than OSMRE. This is consistent with primacy, 
as described by a U.S. Court of Appeals:

the Secretary is initially to decide whether the proposed state 
program is capable of carrying out the provisions of the Act but is 
not directly involved in local decision making after the program has 
been approved.

In re Permanent Surface Min. Regulation Litigation, 653 F.2d 514, 518 
(D.C. Cir. 1981). The court further stated that:

[o]nce a state program has been approved, the state regulatory 
agency plays the major role, with its greater manpower and 
familiarity with local conditions. It exercises front-line 
supervision, and the Secretary will not intervene unless its 
discretion is abused.

Id. at 523. Although a State plays the major role in enforcing its 
State program, the court did note that: ``Ultimate responsibility for 
guaranteeing effective state enforcement of uniform nationwide minimum 
standards lies with the Secretary.'' Id. States are expected to fully 
implement their programs, including all applicable enforcement 
provisions. OSMRE will exercise its oversight responsibility, in part, 
through this final rule and will continue to issue TDNs when it has 
reason to believe a possible violation exists; the relevant provisions 
of this final rule clarify the process that OSMRE will use to arrive at 
a ``reason to believe.'' Further, if a State does not effectively 
enforce its State program, Congress authorized OSMRE to address such 
inadequacies in the State's implementation through SMCRA section 
521(b). 30 U.S.C. 1271(b).
    Some commenters asserted that the time frames for responding to 
TDNs have been extended or made indefinite by the proposed rule. While 
it is true that there is no time frame set forth in the final rule for 
OSMRE's authorized representative to make a determination about whether 
they have reason to believe a violation exists, it is also true that 
there has never been a stringent time frame imposed. Further, as OSMRE 
explained in the proposed rule, OSMRE proposed, and is finalizing, 
inclusion of the word ``readily'' to the revised regulations at 30 CFR 
842.11(b)(1)(i) to modify the phrase ``available information'' to 
ensure that the process proceeds as quickly as possible and does not 
become open-ended. 85 FR at 28907; see also OSMRE's response to a 
request to specifically define ``readily available.'' Once OSMRE's 
authorized representative has determined that they have reason to 
believe that a possible violation exists, the State regulatory 
authority will still have only ten days to respond to the TDN. See 30 
CFR 842.11(b)(1)(ii)(B)(1). Thus, this rule ensures that reported 
alleged violations will be responded to in a reasonable amount of time.
    Finally, this rule neither makes a State regulatory authority's 
response to a TDN discretionary nor impinges on OSMRE's ability to 
perform oversight of a State regulatory program. OSMRE is not changing 
the nondiscretionary requirement that a State regulatory authority must 
respond to a TDN with good cause for inaction or by taking appropriate 
action within ten days. 30 CFR 842.11(b)(1)(ii)(B)(1). OSMRE is, 
however, revising its regulations to ensure a more uniform and 
efficient process when OSMRE receives a citizen complaint. The revised 
regulation clarifies what the OSMRE authorized representative should 
consider when they receive a citizen complaint, which eliminates the 
possibility that different OSMRE offices will apply different standards 
when determining whether to issue a TDN. This revised process also 
ensures that the OSMRE authorized representative who receives a citizen 
complaint is able to apply their independent, professional judgment to 
determine whether they have reason to believe a possible violation 
exists based on all readily available information before them. Once an 
OSMRE authorized representative determines that they have ``reason to 
believe,'' they must issue a TDN to the State regulatory authority. See 
30 CFR 842.11(b)(1). Therefore, OSMRE's oversight of alleged violations 
is not materially altered.
    Comment: Very similar to the comment addressed above, a citizens' 
group commenter expressed the opinion that the rule gives the coal 
industry a free pass to break environmental laws

[[Page 75159]]

and provides no meaningful way for citizens to bring potential 
violations to the attention of OSMRE. As evidence for this claim, the 
commenter references a statement by OSMRE in regard to the spirit of 
cooperative federalism, at 85 FR at 28905 in the preamble of the 
proposed rule, ``to alleviate unnecessary regulatory burden'' 
consistent with E.O. 13777.
    Response: This rulemaking does not, and could not, alter OSMRE's 
statutory responsibilities to enforce SMCRA. Moreover, this rulemaking 
does not impair, weaken, or eliminate OSMRE's ability to enforce SMCRA 
and the implementing regulations or the public's ability to report 
alleged violations directly to OSMRE. See also OSMRE's further 
explanations in this section.
    To the extent that OSMRE referred to the spirit of cooperative 
federalism in the preamble, it was a recognition of the fundamental 
importance of cooperative federalism to SMCRA's administrative and 
enforcement framework. See, e.g., Bragg, 248 F.3d at 288 (SMCRA 
``accomplishes [its] purposes through [ ] `cooperative federalism,' in 
which responsibility for the regulation of surface coal mining in the 
United States is shared between the U.S. Secretary of the Interior and 
State regulatory authorities.''). It was in this spirit that we 
coordinated with our State regulatory partners as we conceptualized 
this rulemaking. This spirit also informed how we chose to clarify any 
potential ambiguities in the existing regulations and develop a more 
efficient process for addressing alleged violations of SMCRA within the 
limits of our statutory authority. Cooperative federalism does not mean 
that OSMRE will no longer perform its statutory duty to oversee a State 
regulatory authority's implementation, administration, enforcement, and 
maintenance of its State program. Instead, it means that, given the 
prominent role that the States play in administering and enforcing 
SMCRA, including State regulatory authorities early in the process is 
advantageous to both the State regulatory authority and OSMRE because 
it reduces duplicative efforts to address potential violations. Also, 
as stated above, in OSMRE's experience, when a citizen first contacts 
the State regulatory authority, violations are often promptly and 
effectively resolved without OSMRE's direct involvement.
    Likewise, the fact that this action is consistent with E.O. 13777 
and helps to alleviate unnecessary regulatory burdens does not mean 
that OSMRE will fail to perform its statutory responsibilities set 
forth in SMCRA--including its oversight responsibilities. It simply 
means that by removing a potential ambiguity from the Federal 
regulations and creating a more uniform process for OSMRE authorized 
representatives to follow when determining whether they have ``reason 
to believe,'' OSMRE is reducing the likelihood of duplicative processes 
between OSMRE and the State regulatory authorities. It does not mean 
that permittees will be held to a lesser standard for abating SMCRA 
violations when they occur.
    Comment: In the same vein, a citizen commenter states that United 
States citizens and taxpayers have a right to seek accountability for 
violations of mining laws that protect citizens and the environment. As 
a rationale for not finalizing the proposed rule, the commenter also 
cites to a State constitution and asserts that there is a provision 
that is aimed at protecting citizens' rights to a ``clean and healthful 
environment.''
    Response: Nothing in this final rule diminishes a citizen's ability 
to bring potential violations of SMCRA or State counterparts to SMCRA 
to OSMRE's attention. Further, when OSMRE has reason to believe that a 
violation exists, OSMRE will continue to send a TDN to the relevant 
State regulatory authority and take appropriate enforcement action. 
This final rule is fully authorized by SMCRA. In order for a State to 
be granted primacy of an approved SMCRA State program, the State must 
follow the procedures of section 503 of SMCRA, 30 U.S.C. 1253; however, 
``[n]o State law or regulation . . . shall be superseded by any 
provision of [SMCRA] or any regulation issued pursuant thereto, except 
insofar as such State law or regulation is inconsistent with the 
provisions of [SMCRA],'' and State laws and regulations may be more 
stringent than SMCRA and its implementing regulations. See 30 U.S.C. 
1255. Therefore, nothing in SMCRA prevents any State from adopting laws 
and regulations related to surface coal mining operations that are more 
stringent than SMCRA or its implementing regulations, including this 
final rule. Moreover, this final rule is consistent with SMCRA's 
purpose of protecting society and the environment from the adverse 
effect of surface coal mining operations, which is similar to the State 
constitutional provision cited by the commenter.
    Comment: A citizen commenter expressed concern that OSMRE's 
proposed rule, if finalized, would reduce the efficacy of OSMRE's 
oversight of approved State programs. Similarly, another commenter 
opined that the proposed rule, if finalized, would reduce or hinder 
OSMRE's ability to conduct oversight of State regulatory programs.
    Response: OSMRE disagrees with these commenters' characterization 
of the impacts of the regulatory clarification that OSMRE proposed and 
is finalizing today. As explained in response to other comments within 
this section, OSMRE drafted the regulatory revisions to improve the 
efficiency and effectiveness of OSMRE's oversight by focusing State and 
OSMRE resources on addressing alleged violations and not on simply 
generating paperwork. Nothing in the final rule prevents OSMRE from 
exercising the full panoply of oversight actions that Congress 
authorized in SMCRA. To the contrary, OSMRE's regulatory revisions seek 
to build on the oversight responsibilities at 30 U.S.C. 1254(b) and 
1271(b), which authorize OSMRE to provide Federal enforcement when a 
State is not enforcing all or part of its approved program or to take 
over all or part of a State regulatory program if the State regulatory 
authority fails to enforce the approved State program. Specifically, 
OSMRE is adding the concept of action plans to 30 CFR 733.12, which 
enhances the tools available to OSMRE to ensure the approved State 
program continues to be effectively implemented, maintained, enforced, 
and administered. This addition will codify an existing OSMRE practice 
and result in more accurate and concise solutions to State regulatory 
program issues.
    Comment: One citizen commenter expressed concerns that SMCRA does 
not intend the citizen complaint process to be so complicated that it 
would impair citizens' access to filing complaints or inhibit citizens 
from filing complaints. This citizen was particularly concerned that 
the clarification as proposed would make the filing of a citizen 
complaint more difficult for those who are not experts in SMCRA and 
SMCRA procedures. For example, the citizen alleges that, as proposed, 
the clarification would be similar to a legal filing instead of an 
informational filing as SMCRA intended. Similarly, another citizen 
commenter expressed concern that the proposed requirement to specify 
the basis for the person's assertion that the State regulatory 
authority has not taken action with respect to the possible violation 
is too burdensome upon the public and will reduce the number of Federal 
inspections.
    Response: OSMRE disagrees with the commenters' views; the 
clarification adopted in this final rule has very little practical 
effect on how citizens may file

[[Page 75160]]

complaints and places no additional burden on the citizen complaint 
process from a complainant's perspective. The majority of the proposal 
finalized today only affects OSMRE's process after receipt of a citizen 
complaint. For a citizen, the finalized regulation at 30 CFR 842.12(a) 
reconfirms the requirement in existing 30 CFR 842.12(a) that, when 
requesting a Federal inspection, the citizen must include a statement 
that the citizen has informed the State regulatory authority of the 
existence of the possible violation, condition, or practice. As 
proposed, the final rule will also require the citizen to provide the 
basis for the citizen's assertion that the State regulatory authority 
has not taken action with respect to the possible violation. OSMRE 
finds this necessary because any information the citizen can provide to 
OSMRE about the State regulatory authority's response would be very 
helpful in OSMRE's efforts to efficiently resolve the alleged 
violation. OSMRE is not suggesting that a citizen complainant enter a 
mine to verify whether or not the State regulatory authority has acted 
on the possible violation. To the contrary, OSMRE asks citizens not to 
do so and is merely asking the requester of the Federal inspection to 
provide any information he or she may have about the State regulatory 
authority's action or inaction. By no means is this requirement aimed 
at reducing requests for Federal inspections; it is intended to ensure 
that OSMRE has all readily available information.
    Furthermore, OSMRE does not expect a citizen to provide the level 
of information that would be required for a legal filing. For instance, 
just as in the existing regulations, under the final regulation at 30 
CFR 842.12(a), OSMRE specifies that an oral report is sufficient for 
submitting a citizen complaint that requests a Federal inspection as 
long as it is followed up by a written statement. Of course, the more 
detail that a citizen can provide to OSMRE, the more information the 
authorized representative will have when he or she determines whether 
there is reason to believe there is a violation, which could expedite 
the correction of any violation that the citizen complaint brings to 
OSMRE's attention. However, OSMRE recognizes that obtaining significant 
information is frequently beyond most citizens' ability, and the final 
rule does not require any more information than the citizen has 
available, such as information explaining why the citizen believes 
there is a violation, that the State regulatory authority was notified, 
and, possibly, the State regulatory authority's response.
    Comment: One commenter interpreted OSMRE's preamble statement at 85 
FR at 28910 that ``OSMRE should never be acting as a mere conduit for 
transmitting a citizen complaint to a State regulatory authority in the 
form of a TDN'' to mean that OSMRE's proposed rule would eliminate the 
ability of a citizen to seek Federal relief.
    Response: As explained in the response immediately above, citizens 
can still avail themselves of the citizen complaint process set forth 
in 30 U.S.C. 1267(h)(1). This rule does not materially alter the 
ability of a citizen to contact OSMRE about an alleged violation. OSMRE 
included the language quoted by the commenter in the preamble of the 
proposed rule because 30 U.S.C. 1271(a)(1) requires OSMRE's authorized 
representative to use their discretion to make an independent, 
professional judgment based on all readily available information, 
including information provided by a citizen, to determine if they have 
reason to believe a violation exists before issuing a TDN. In other 
words, OSMRE has the discretion to determine whether it has reason to 
believe a violation exists. See, e.g., Castle Mountain Coal. v. OSMRE, 
No. 3:15-CV-00043, 2016 WL 3688424, at *6 (D. Alaska July 7, 2016) (30 
U.S.C. 1271(a)(1) ``does not assign any non-discretionary duties to the 
agency unless and until the Secretary has found `reason to believe' 
that a violation exists.''). Once OSMRE determines it has reason to 
believe a violation exists, the final rule still recognizes that OSMRE 
has a mandatory duty to issue a TDN to a State regulatory authority.
    This comment, in fact, highlights one of the reasons that OSMRE is 
revising its regulations--to clarify a potential ambiguity in its 
existing regulations. This commenter appears to interpret OSMRE's 
existing ambiguous regulations as requiring OSMRE to automatically 
issue a TDN every time it receives a citizen complaint. To the extent 
that this is the case, the commenter is not alone. The ambiguity in the 
existing regulations has, in some instances, created the impression 
that the existing regulation at 30 CFR 842.12(a) means that OSMRE will 
be merely serving as a conduit for a citizen complaint, i.e., 
automatically issuing a TDN anytime it receives a citizen complaint. 
See, e.g., W. Va. Highlands Conservancy, 152 IBLA 158, 187 (Apr. 25, 
2000) (When examining the existing regulations, the IBLA stated: ``[W]e 
agree with appellants that the regulations do not envision `fact-
finding' to determine if a violation exists before deciding whether a 
`possible' violation may exist. Rather, the preamble language to the 
1982 rule makes clear that the possibility of a violation triggers the 
regulatory requirements to notify the State.'' (emphasis added)). To 
the extent that our existing regulations were interpreted, by the 
Interior Board of Land Appeals and others, to mandate a TDN on receipt 
of every citizen complaint, that interpretation is in clear contrast 
with the language of 30 U.S.C. 1271(a)(1), which requires an OSMRE 
authorized representative to use his or her discretion to determine 
whether there is ``reason to believe'' before issuing a TDN. Therefore, 
the revised regulations seek to eliminate any possible ambiguity--it is 
now clear, consistent with the plain language of 30 U.S.C. 1271(a)(1), 
that the OSMRE authorized representative has discretion to determine 
whether to issue a TDN based on whether they have ``reason to believe'' 
based on all readily available information. Any other interpretation 
would change OSMRE's role from an independent, professional expert on 
mining to that of a clerical worker without the discretion to discern 
facts underlying a complaint and that is not contemplated by SMCRA.
    Comment: A commenter, providing input on behalf of a citizens' 
group, expressed concern that the proposed changes to OSMRE's 
regulations would undermine OSMRE's ability to perform its oversight 
role and prevent public participation in the process. The commenter 
stressed the importance of OSMRE's ability to hold mine operators 
accountable in addition to what the States do to protect the public and 
the environment.
    Response: OSMRE appreciates the commenter's recognition of the 
important role that OSMRE plays in ensuring public safety and 
environmental protection. However, in a primacy State, OSMRE is 
secondary to the State regulatory authority. Section 503(a) of SMCRA 
specifies that in a primacy State, the State has ``exclusive 
jurisdiction over the regulation of surface coal mining and reclamation 
operations, except as provided in sections 521 and 523 and title IV'' 
of SMCRA. 30 U.S.C. 1253(a). Thus, in a primacy State, OSMRE's role is 
limited to those functions specified in sections 521 and 523 and Title 
IV (30 U.S.C. 1271, 1273, and 1231-1244). Most relevant to this 
rulemaking, section 521 sets forth the circumstances in which OSMRE may 
exercise its oversight enforcement authority in a primacy

[[Page 75161]]

State. This authority operates to better assure that the goals of SMCRA 
are met.
    Although OSMRE's enforcement authority in a primacy State is 
limited to that authorized by 30 U.S.C. 1271, OSMRE disagrees that the 
rule, as proposed, would further limit OSMRE's ability to enforce SMCRA 
and to protect the public and the environment. OSMRE also disagrees 
that the proposed rule would, in any way, prevent public participation. 
Public participation is an important tenet of SMCRA. As the U.S. Court 
of Appeals for the Fourth Circuit stated:

    SMCRA is designed in part to ``assure that appropriate 
procedures are provided for the public participation in the 
development, revision, and enforcement of regulations, standards, 
reclamation plans, or programs established by the Secretary or any 
State under [the Act].'' [30 U.S.C.] 1202(i). One of the 
``appropriate procedures'' to assure public participation in 
enforcing SMCRA standards allows any adversely affected person to 
notify OSM[RE] of the existence of a SMCRA violation at any surface 
mining operation. Id. Sec.  1267(h). The notification is commonly 
known as a ``citizen complaint.''

W. Va. Highlands Conservancy, Inc. v. Norton, 343 F.3d 239, 242 (4th 
Cir. 2003).
    The final rule does not change the public's ability to submit a 
citizen complaint. A citizen may still submit a complaint to OSMRE just 
as he or she has been able to do for more than 40 years.
    The final rule clarifies OSMRE's process after receipt of a citizen 
complaint. Specifically, it provides that OSMRE will verify the 
requirement that has been in our regulations since 1982 that, in a 
primacy State, a citizen, when requesting a Federal inspection, must 
notify the State regulatory authority of an alleged violation before or 
simultaneously with notification to OSMRE. 47 FR at 35620. Also, as 
described in response to comments about OSMRE's clarification that when 
formulating a decision about whether there is ``reason to believe,'' 
``any information readily available'' includes information received 
from the State regulatory authority, OSMRE is also removing the 
potential ambiguity in the existing regulations about the information 
that OSMRE's authorized representative will review before determining 
whether he or she has reason to believe a violation exists. These 
clarifications to OSMRE's process after receiving a citizen complaint 
will allow both OSMRE and the State regulatory authority to dedicate 
resources toward addressing any violation alleged by a citizen instead 
of preparing superfluous paperwork for each other. The clarification 
also enhances cooperation and minimizes duplication of administration 
with the State regulatory authority as required by 30 U.S.C. 
1211(c)(12).
    OSMRE will continue to follow the requirements of 30 U.S.C. 1271(a) 
and the implementing regulations found at 30 CFR parts 842 and 843 and 
issue a TDN when appropriate. Therefore, the final rule does not 
eliminate the existing TDN process or lessen OSMRE's overall oversight 
authority, including OSMRE's ability to enforce violations in primacy 
States, if that is necessary.
    Comment: One citizen commenter emphasized that mining operations 
must be held accountable for daily mining practices and reclamation to 
ensure protection of the environment. The commenter did not support the 
proposed regulation in any way without explicitly stating a rationale 
or support for this position. Additionally, the commenter states that 
costs for reclamation should be secured initially and ``no closure 
should happen before all work and costs are absorbed by the company.'' 
The commenter also asserts that a mining company ``CEO should be paid 
what is left if there is anything.''
    Response: Although certain aspects of the comment are not entirely 
clear or do not relate to the proposed rule, OSMRE agrees that mining 
operations must be held accountable for their mining practices to 
ensure that mining and reclamation are done in an environmentally 
protective manner. One of the stated purposes of SMCRA is to ``assure 
that surface coal mining operations are so conducted as to protect the 
environment,'' 30 U.S.C. 1202(d), and OSMRE always has a duty to 
further the purposes of SMCRA. Moreover, as stated elsewhere, this 
final rule will enhance OSMRE's and the State regulatory authorities' 
ability to identify and address alleged violations of State regulatory 
programs so that any violations can be corrected as soon as possible. 
Also, as we have stated in response to other comments, should a citizen 
have information related to an alleged violation at a specific mining 
operation, he or she is entitled to file a citizen complaint, and OSMRE 
will address any citizen complaints it receives in accordance with 
SMCRA and the relevant regulations to ensure that any violations are 
timely corrected. In addition, information in a citizen complaint may 
result in OSMRE identifying a State regulatory program issue, which 
OSMRE will address under Sec.  733.12 of this final rule. A citizen may 
also request that OSMRE evaluate a State program as outlined in 
existing 30 CFR 733.12(a), that has been redesignated as 30 CFR 
733.13(a) under this final rule. With regard to reclamation 
requirements and the cost of reclamation, OSMRE notes that those issues 
were not a part of the proposed rule, and this final rule does not 
alter any of the existing reclamation regulations. Importantly, SMCRA 
section 509, 30 U.S.C. 1259, and the existing regulations at 30 CFR 
part 800, have bonding requirements to assure, among other things, 
completion of reclamation plans.
    Comment: One commenter asserted that State agency personnel have 
been physically relocated farther from mine sites and have become less 
effective. The commenter also notes that agency personnel have recently 
changed, which has resulted in a loss of institutional memory.
    Response: OSMRE recognizes that the loss of staff and their 
institutional knowledge can be a problem for both OSMRE and State 
regulatory authorities. Similarly, budget savings, which may have been 
the reason that personnel from State regulatory authorities were 
relocated, is a part of government. Both reasons, however, support 
OSMRE revising its regulations, as OSMRE is doing here, to make them 
more efficient and effective, and to avoid duplication of efforts 
between a State regulatory authority and OSMRE. This final rule 
enhances OSMRE's ability to engage in appropriate oversight of State 
regulatory programs.
    Comment: Several commenters offered examples of alleged OSMRE 
oversight enforcement failures.
    Response: To the extent the commenters believe there is a failure 
of any State regulatory authority to implement, administer, enforce, or 
maintain an approved program, OSMRE directs the citizens to the 
provisions of existing 30 CFR 733.12(a) that are being redesignated as 
30 CFR 733.13(a) pursuant to this final rule. Moreover, as to a concern 
expressed by one commenter that the proposed rule would impact an 
individual's ability to ``protest projects going through their own or 
state/fed[eral] property,'' OSMRE's proposed rule clarification, as 
adopted in this final rule, will not change a citizen's ability to 
``protest'' or comment on proposed mining projects or permitting 
actions of any individual mine located on private, State, or Federal 
property. OSMRE did not propose to revise, and is not revising, 30 CFR 
773.6, which details how citizens can participate in permit processing. 
Thus, the opportunities for the public to comment on proposed mining 
projects or permitting actions provided by SMCRA and further explained 
in 30

[[Page 75162]]

CFR 773.6 remain unchanged, including the time to file objections to 
individual mine permits on all property, regardless of ownership. In 
conclusion, OSMRE will continue to take its oversight responsibilities 
very seriously, in accordance with SMCRA and the implementing 
regulations.

E. OSMRE's Authorized Representative Will Continue To Formulate 
``Reason To Believe'' As Mandated by SMCRA; This Includes Using Best 
Professional Judgment

    Comment: One citizens' group representing many national citizen 
organizations and ``thousands of individuals'' across the country 
questioned OSMRE's assertion that the information used to formulate 
``reason to believe'' has created ambiguity within the TDN process, in 
particular related to on-the-ground violations. To support this 
contention, the citizens' group states that ``a search of all [Interior 
Board of Land Appeals (IBLA or the Board)] decisions fails to disclose 
even one instance where the Board found the long-established OSMRE Ten 
Day Notice procedure to be problematic.''
    Response: As explained below, OSMRE disagrees with the commenter's 
opinion that OSMRE is creating an ambiguity where it does not exist. 
First, this rule is being promulgated to improve OSMRE's coordination 
with State regulatory authorities to minimize duplication of 
inspections, enforcement, and administration of SMCRA. Specifically, 
this rule provides a streamlined, more uniform, and efficient process 
for OSMRE to follow when it receives a citizen complaint. Because the 
IBLA typically does not get involved until after OSMRE makes a decision 
on whether to issue a TDN, conduct a Federal inspection, or issue a 
notice of violation or cessation order, it is unsurprising that the 
IBLA has not identified OSMRE's internal process leading to the 
issuance of a TDN as a problem.
    Second, some of the IBLA cases that the commenter cites illustrate 
how the existing regulations may result in a disparate application of 
OSMRE's various enforcement tools. For example, the commenter 
highlights a decision in which the IBLA found OSMRE's decision to defer 
violations for programmatic review under the 30 CFR part 733 process 
was not in accordance with the existing regulations. W. Va. Highlands 
Conservancy, et al., 152 IBLA at 193. While it is true that the 
commenter accurately summarized the holding of this decision, it is 
also true that the facts presented in that case demonstrate an OSMRE 
internal inconsistency when applying the existing Federal regulations. 
Specifically, the case focused on when it was appropriate for OSMRE to 
use the different enforcement tools set forth in 30 U.S.C. 1271(a) and 
(b) in response to complex citizen complaints. See, e.g., id. at 187-
188 (The Board rejected OSMRE's attempt to justify its failure to issue 
TDNs on specific sites as required by 30 U.S.C. 1271(a) based upon its 
use of the programmatic review process in 30 U.S.C. 1271(b)).
    The rule OSMRE is finalizing today helps to clarify to agency 
personnel and the public when each of the enforcement tools in 30 
U.S.C. 1271(a) and (b) will be used and what information OSMRE will 
rely on when it makes a determination that it has reason to believe a 
violation exists. For instance, if a similar fact pattern to the one in 
West Virginia Highlands Conservancy arose under the regulations 
finalized today, OSMRE's authorized representative would make a 
determination whether they have reason to believe a violation exists on 
a specific site based on all readily available information available to 
them. If they have ``reason to believe,'' they would then issue a TDN. 
However, the revisions made to 30 CFR 842.11(b)(1)(ii)(B)(3) would also 
allow the State regulatory authority to respond that it has taken 
appropriate action because it, along with OSMRE, is immediately 
implementing steps to correct a programmatic issue using the action 
plan process set forth in revised 30 CFR 733.12. The revised 
regulations also clarify that OSMRE may still take enforcement action 
under 30 U.S.C. 1271(a) if the State regulatory program issue ``results 
in or may imminently result in a violation of the approved State 
program.'' Therefore, the revisions to the Federal regulations 
finalized today should help reduce the ambiguity that lead to the West 
Virginia Highlands Conservancy case.
    Third, despite the cases cited by the commenters, there is no 
judicial or administrative decision defining ``reason to believe'' as 
used in 30 U.S.C. 1271(a). One case, Castle Mountain Coalition v. 
OSMRE, explicitly recognizes that OSMRE does not have a mandatory duty 
to act under 30 U.S.C. 1271(a) until it has determined there is reason 
to believe that a violation exists. 2016 WL 3688424, at *6. In another 
case, a court reviewed the ``reason to believe'' standard in 30 U.S.C. 
1271(b) and concluded that a determination as to ``whether the 
Secretary of the Interior ``has `reason to believe' a violation has 
occurred is a matter committed to her discretion by law.'' Dacotah 
Chapter of Sierra Club v. Jewell, No. 12-065, 2013 WL 12109410, at *8 
(D.N.D. Oct. 22, 2013). The rulemaking that OSMRE is finalizing today 
ensures that there is no debate that the OSMRE authorized 
representative is allowed to use their independent, professional 
discretion, based on all readily available information, to determine 
whether they have ``reason to believe.'' This clarification is needed 
because many of the comments received in response to the proposed 
rulemaking show that the public misunderstands the discretion committed 
to OSMRE's authorized representative by 30 U.S.C. 1271(a).
    Comment: Many commenters, including industry groups that represent 
operations that mine coal through surface and underground methods, 
submitted questions and comments about the requisite information 
necessary to establish reason to believe a violation exists under the 
revisions to 30 CFR 842.11 and 842.12 adopted in this final rule. 
Within this general category of comments, one commenter requested that 
OSMRE include a provision in the final rule that the OSMRE authorized 
representative should not base his or her decision to issue a TDN on 
``bare allegations.'' This same commenter also requested that OSMRE 
include language in the final rule that clarifies that the OSMRE 
authorized representative will use and consider information obtained 
from any source, including the permittee, to establish reason to 
believe a violation exists.
    Response: In accordance with 30 U.S.C. 1271(a), OSMRE can formulate 
a decision about whether reason to believe that a violation exists ``on 
the basis of any information available. . . , including receipt of 
information from any person. . . .'' Emphasis added. Consistent with 
this statutory provision, Sec. Sec.  842.11(b)(1)(i) and 842.12(a) of 
this final rule specify that OSMRE's authorized representative will 
consider any readily available information when he or she is deciding 
whether there is reason to believe a violation exists, including 
information from a citizen complainant and any information that the 
relevant State regulatory authority submits to the authorized 
representative. Any readily available information includes information 
from any person, including the permittee, and is not limited to 
information that OSMRE receives from a citizen or State regulatory 
authority. In addition, as OSMRE stated in the preamble to the proposed 
rule, other examples of sources of readily available information 
include permit files or public records. 85 FR at 28911. However, based 
on this

[[Page 75163]]

commenter's suggestion for clarification and other commenters' similar 
suggestions, in the rule OSMRE is finalizing, OSMRE includes the phrase 
``from any source'' within 30 CFR 842.11(b)(1)(i) and (b)(2). This 
addition will further remove any ambiguity relevant to information an 
OSMRE authorized representative considers when formulating reason to 
believe and reinforces internal consistency in the Federal regulations.
    Moreover, as OSMRE explained in the proposed rule preamble, OSMRE 
considers ``any information that is accessible without unreasonable 
delay'' to be ``readily available information.'' 85 FR at 28907. In the 
proposed rule, OSMRE chose the phrase ``readily available'' purposely 
``so that the process will proceed as quickly as possible and will not 
become open-ended.'' Id. OSMRE agrees with the commenter that the 
authorized representative should not base the decision to issue a TDN 
on ``bare allegations.'' SMCRA establishes a firm foundation for an 
authorized representative to exercise professional judgment when 
formulating reason to believe a violation exists. Thus, under this 
final rule, OSMRE's authorized representative, while using best 
professional judgment, will make the ``reason to believe'' 
determination based upon readily available information, rather than 
bare allegations.
    Comment: One commenter suggested that an authorized representative 
should not have discretion to use his or her best professional judgment 
when evaluating alleged violations. The commenter also suggested that, 
in lieu of the authorized representative, the most appropriate person 
to determine that ``reason to believe'' a violation exists should be a 
qualified OSMRE career staff employee, who should have a degree in 
engineering, geology, environmental science, or a related field.
    Response: This comment appears to focus on OSMRE's authorized 
representative's formulating ``reason to believe.'' OSMRE agrees with 
the commenter that an OSMRE authorized representative should be a 
qualified individual with the appropriate educational background and 
specialized experience required to be certified by the Director of 
OSMRE to serve as an authorized representative. However, OSMRE 
disagrees with the commenter's suggestion that an authorized 
representative should not have discretion to use his or her best 
professional judgment when evaluating alleged violations. The use of 
best professional judgment is essential for an authorized 
representative.
    When enacting SMCRA, Congress mandated that OSMRE ``shall have a 
Director who shall be appointed by the President. . . .'' 30 U.S.C. 
1211(b). Congress required the Director to, among other things, ``make 
those investigations and inspections necessary to [e]nsure compliance 
with this Act[.]'' 30 U.S.C. 1211(c)(1). Integral to the Director 
carrying out these obligations is hiring appropriate, qualified 
employees within OSMRE. To this point, Congress mandated that 
``[e]mployees of the Office shall be recruited on the basis of their 
professional competence and capacity to administer the provisions of 
the Act.'' 30 U.S.C. 1211(b). Ultimately, it is the OSMRE Director who 
must ensure that employees of OSMRE--including a designated authorized 
representative--have the ``professional competence and capacity'' to 
undertake the ``investigations and inspections necessary'' to ensure 
compliance with SMCRA. See 30 U.S.C. 1211(b) and (c). Only an OSMRE 
employee who is certified as an authorized representative with 
inspection authority may issue a TDN pursuant to section 521(a)(1) of 
SMCRA. 30 U.S.C. 1271(a)(1). An employee who is certified as an 
authorized representative receives a badge and identification 
credentials that he or she carries when on duty. Outside the context of 
this rulemaking, only these same authorized representatives may 
undertake inspection and enforcement actions under section 517 of 
SMCRA. 30 U.S.C. 1267. OSMRE promulgated regulations specific to these 
tasks at 30 CFR parts 842 and 843. Additionally, as set forth in 
OSMRE's Directive INE-18, ``Authorized Representatives'', OSMRE has 
established a rigorous process to ensure that the best qualified 
candidates are selected for positions as authorized representatives and 
that these individuals have the ``professional competence and 
capacity'' to appropriately issue TDNs based on their best professional 
judgment, consistent with 30 U.S.C. 1211(b). See https://www.osmre.gov/LRG/docs/directive958.pdf (last accessed Aug. 23, 2020). Based on 
established OSMRE practice and procedure, the Director (or approved 
designee) may certify an OSMRE employee as an authorized representative 
only upon satisfactory completion of significant training and 
certification requirements. Furthermore, the Director (or approved 
designee) may suspend or withdraw the certification of any authorized 
representative. Each authorized representative with authority to issue 
TDNs is required to hold a four-year college degree with major study in 
the areas of hydrology, agronomy, geology, range conservation, 
forestry, ecology, civil engineering, mining engineering, natural 
science, biological sciences, natural resources, environmental 
planning, or earth sciences as required by the U.S. Office of Personnel 
Management's Federal Position Classification and Qualifications. See 
https://www.opm.gov/policy-data-oversight/classification-qualifications/general-schedule-qualification-standards/1800/surface-mining-reclamation-specialist-1801/ (last accessed Aug. 23, 2020). 
Authorized representatives with authority to issue TDNs are highly 
educated, highly trained individuals who must also undergo a 
progressive on-the-job training and mentoring plan before becoming an 
authorized representative. The OSMRE Director (or designee) approves 
the training and mentoring plan to ensure competency and capacity to 
administer SMCRA. This information is documented in the authorized 
representative's personnel file.
    In sum, OSMRE authorized representatives are highly educated, 
trained, and qualified individuals who OSMRE hires precisely because of 
their ability to exercise professional judgment. Specific to this final 
rule, these individuals are uniquely qualified, based upon their 
professional judgment, to determine whether there is reason to believe 
a violation exists, issue TDNs when necessary, and ensure that 
violations of a State regulatory program are corrected in a timely 
manner.
    Comment: Several citizen commenters oppose the clarification of the 
TDN process, alleging that the proposed rule would no longer treat 
citizen complaints as true. These commenters state that the proposed 
rule would result in citizen complaints not being formally investigated 
within 10 days of the complaint being filed. The commenters state that 
the proposed rule would result in OSMRE dismissing public concerns and 
ignoring mining violations. Many commenters also suggested that the 
proposed rule was not simply a clarification of existing rules.
    Response: OSMRE disagrees with these characterizations of the 
proposed rule and notes that, under this final rule, OSMRE will 
continue to take citizen complaints seriously, in recognition of the 
important role citizens play in the SMCRA enforcement process. When 
OSMRE issues a TDN to a State regulatory authority, the TDN may be 
based upon information that OSMRE initially received in a citizen 
complaint. However, to fully address this comment, OSMRE will explain 
the existing TDN

[[Page 75164]]

process as authorized by section 521(a)(1) of SMCRA, 30 U.S.C. 1271(a), 
and implemented in OSMRE's existing regulations at 30 CFR 842.11.
    Section 521(a)(1) provides that the ``reason to believe'' 
determination in the TDN context is based upon ``any information 
available to [the Secretary], including receipt of information from any 
person.'' Likewise, under the existing regulations at section 
842.11(b)(1)(i), as they pertain to the TDN process, OSMRE's authorized 
representative's determination of whether he or she has ``reason to 
believe'' is based upon ``information available.'' Moreover, under 
existing Sec.  842.11(b)(2), upon receipt of a citizen complaint, 
OSMRE's authorized representative transmits the citizen complaint to 
the State regulatory authority as a TDN after the authorized 
representative has formulated reason to believe that a violation, 
condition or practice exists.'' The OSMRE authorized representative's 
formulation of reason to believe includes analysis based on SMCRA and 
the Federal regulations, surface coal mining expertise, and any 
information readily available. OSMRE explained in the proposed rule 
that some might have interpreted existing Sec.  842.11(b)(2) to mean 
that all OSMRE has to do is determine whether the facts alleged in a 
citizen complaint would constitute a violation before issuing a TDN. 
However, the existing regulations are not designed to have OSMRE merely 
serve as a conduit to the State regulatory authority. OSMRE's 
authorized representative must analyze the information. In the proposed 
rule, OSMRE explained that when the authorized representative performs 
the analysis necessary to formulate reason to believe, he or she should 
consider all readily available information--including information 
ascertained from the State regulatory authority and any additional 
information that citizens provide. While it is accurate that OSMRE 
proposed to remove the phrase ``if true'' from existing Sec.  
842.11(b)(2), and has adopted that change in this final rule, the 
proposed rule was not intended to weaken the TDN rules with respect to 
an OSMRE authorized representative's analysis of whether he or she has 
``reason to believe'' that a violation exists. In fact, in the proposed 
rule, OSMRE proposed that the authorized representative would consider 
information that is vital to understanding and examining an alleged 
violation. OSMRE's authorized representative must weigh the evidence in 
front of him or her, especially if some of that evidence is 
contradictory--this is part of the OSMRE authorized representative's 
exercise of professional judgment based upon readily available 
information in determining whether he or she has reason to believe a 
violation exists.
    In this final rule, the removal of the phrase ``if true'' from 30 
CFR 842.11(b)(2) coupled with the insertion of the phrase ``on the 
basis of any information readily available'' found at proposed 30 CFR 
842.11(b)(1)(i) removes ambiguity in the existing TDN process, 
increases efficiency, and allows OSMRE's authorized representative to 
more fully exercise his or her professional judgment. This approach is 
consistent with SMCRA and even OSMRE's existing regulations at Sec.  
842.11(b)(1)(i). In this regard, the relevant provisions that OSMRE is 
adopting in this final rule are a clarification of the existing 
regulations. However, this clarification is necessary to remove any 
confusion that was created by the ``if true'' language.
    Moreover, Congress created OSMRE as the expert agency that 
administers SMCRA, 30 U.S.C. 1211(a) and (c), and requires that 
``[e]mployees of [OSMRE] shall be recruited on the basis of their 
professional competence and capacity to administer the provisions of 
this Act'' (30 U.S.C. 1211(b)). Thus, it stands to reason that OSMRE, 
through its authorized representative, must apply expertise and 
professional judgment in determining whether ``reason to believe'' 
exists. Interpreting SMCRA in a manner that relegates the OSMRE 
authorized representative to a position of a mere conduit of a citizen 
complaint to the State regulatory authority is not supported by SMCRA 
or its implementing regulations. Therefore, the commenters' assumption 
that a citizen complaint must be treated ``as true'' ignores OSMRE's 
expertise in administering SMCRA and does not comport with SMCRA or 
even OSMRE's existing TDN regulations and practice. Nothing in SMCRA 
requires OSMRE to accept alleged facts as true in a vacuum; the 
totality of readily available information must be considered in order 
to prevent issuing an unwarranted TDN to a State regulatory authority, 
which would needlessly waste OSMRE's and the State regulatory 
authority's time and resources.
    For these precise reasons, the proposed clarification, which OSMRE 
is adopting in this final rule, removes any unnecessary conflict 
between OSMRE and the State regulatory authority. OSMRE's experience 
has shown that when OSMRE works cooperatively with State regulatory 
authorities, the TDN process works best, and problems are resolved more 
efficiently, furthering the purposes of SMCRA. See generally, 30 U.S.C. 
1202(a) and (d). For example, under the existing TDN process, OSMRE 
does not always receive important information from the State regulatory 
authority that would inform the ``reason to believe'' inquiry, but it 
may receive such information from a citizen. Under this final rule, 
OSMRE must consider information the State regulatory authority provides 
about an alleged violation, eliminating duplication of resources and 
processes between Federal and State agencies. Cooperation between OSMRE 
and State regulatory authorities is mandated by SMCRA to ``minimize 
duplication of inspections, enforcement, and administration of the 
Act.'' 30 U.S.C. 1211(c)(12). This final rule does just that. Once 
OSMRE formulates reason to believe that a possible violation exists and 
sends a TDN to a State regulatory authority, the State will continue to 
have ten days to take appropriate action to cause the alleged violation 
to be corrected or to demonstrate good cause for not correcting the 
alleged violation. Thus, the regulations OSMRE is adopting in this 
final rule will continue to be in conformity with section 521(a)(1) of 
SMCRA.
    Comment: Several commenters suggested that the proposed rule 
clarification would provide states with unlimited time to review and 
respond to citizen complaints. Further, these commenters alleged that 
the proposed rule provision would render action on citizen complaints 
discretionary. According to one commenter, the proposed rule would 
undermine SMCRA at section 521(a) by changing the specified response 
time and eliminating a mandated deadline.
    Response: These characterizations neither accurately reflect the 
proposed rule nor reflect a proper understanding of SMCRA. The proposed 
rule was aimed at enhancing the coordination process between OSMRE and 
its State regulatory program partners to ensure that all information 
readily available is considered by the authorized representative before 
deciding whether there is reason to believe that a violation exists. 
The existing regulations do not specifically state that the authorized 
representative may consider information that a State regulatory 
authority provides in his or her determination of whether there is 
reason to believe a violation exists. Explicitly stating that 
information from the State regulatory authority may be considered will 
remove ambiguity and ensure that all stakeholders are aware of the 
information that OSMRE can consider

[[Page 75165]]

when its authorized representative formulates reason to believe. 
Moreover, there may have been inconsistent levels of review of 
information across the bureau. Specifically stating that OSMRE will 
consider readily available information when formulating reason to 
believe will also ensure that it uniformly considers all simple and 
effective documentation of the alleged violation, condition, or 
practice. Historically, while OSMRE typically considered information in 
its possession, the potential ambiguity in OSMRE's existing regulations 
may have resulted in OSMRE accepting allegations in a complaint as true 
without the benefit of any information that the State regulatory 
authority may have chosen to provide. The practice of issuing TDNs 
without the benefit of information from the State regulatory authority 
increasingly resulted in the issuance of TDNs when the State regulatory 
authority was already investigating the issue or had previously 
determined that there was not a violation of the approved State 
regulatory program. As described in response to other comments, this is 
inefficient and has resulted in duplicative processes for both OSMRE 
and the State regulatory authorities. OSMRE does not always receive 
important information from a citizen that would inform the ``reason to 
believe'' inquiry, but it may receive such information from the State 
regulatory authority, and the OSMRE authorized representative should be 
afforded this opportunity.
    By way of example, a recent complaint received by an OSMRE field 
office involved blasting related to road construction. This complaint 
was ultimately found to be unrelated to a SMCRA permit. Simply 
generating a TDN, without considering all information readily 
available, resulted in a waste of OSMRE and State regulatory authority 
resources and taxpayer money and time; it also unnecessarily redirected 
resources and time away from true SMCRA-related issues. These 
inefficiencies could easily have been avoided by considering all 
readily available information, including any information the State 
regulatory authority chose to provide. Again, it is a basic requirement 
of SMCRA that OSMRE must ``cooperate with . . . State regulatory 
authorities to minimize duplication of inspections, enforcement, and 
administration of [SMCRA].'' 30 U.S.C. 1211(c)(12). Furthermore, as 
noted above, the Supreme Court in Hodel, 452 U.S. at 289, explained 
that: ``[SMCRA] establishes a program of cooperative federalism that 
allows the States, within limits established by federal minimum 
standards, to enact and administer their own regulatory programs, 
structured to meet their own particular needs.''
    The removal of the potential inconsistency between existing Sec.  
842.11(b)(1)(i) and existing Sec.  842.11(b)(2) in this final rule 
properly enhances the cooperative federalism intended by Congress when 
it enacted SMCRA by allowing OSMRE to consider information that a State 
regulatory authority chooses to provide when OSMRE is assessing whether 
it has reason to believe that a violation exists. Furthermore, removing 
the phrase ``if true'' eliminates any perception that OSMRE is a mere 
conduit to the State regulatory authority when in reality OSMRE should 
exercise best professional judgment when formulating reason to believe. 
The objective of the rulemaking is to minimize, to the extent possible, 
duplication of efforts associated with inspections, enforcement, and 
administration of SMCRA, while also ensuring that the public is 
involved in the enforcement process, which will allow potential 
violations of SMCRA and approved State programs to be identified and 
addressed as soon as possible. Of course, after the revisions to the 
existing regulations that OSMRE is adopting in this final rule take 
effect, OSMRE will continue to exercise the oversight of State 
regulatory programs that SMCRA requires.
    OSMRE disagrees with the commenters' suggestion that the rule 
change OSMRE is adopting will result in a State regulatory authority 
having unlimited review time. The final rule does not alter the SMCRA-
mandated ten days that a State regulatory authority has to respond once 
OSMRE issues a TDN. 30 U.S.C. 1271(a)(1). However, the clarification 
does afford OSMRE an opportunity to consider all readily information, 
including any information the State regulatory chooses to provide, when 
formulating reason to believe before issuing any TDN to the State 
regulatory authority. Under existing Sec.  842.11(b)(1)(i), the 
authorized representative already has the authority to consider 
``information available'' before determining that reason to believe 
exists. In the proposed rule, OSMRE explained that information that the 
authorized representative considers must be ``readily available, so 
that the process will proceed as quickly as possible and will not 
become open-ended.'' Thus, considering ``readily available 
information'' under this final rule may create, at most, only a modest 
increase in the amount of time it takes the authorized representative 
to decide whether he or she has ``reason to believe.'' Further, 
affording OSMRE the opportunity to easily ascertain if the State 
regulatory authority has been appropriately put on notice of a request 
for Federal inspection, including the possible violation--as is already 
required under the existing regulations at 30 CFR 842.12(a)--and 
whether or not the State regulatory authority has investigated or is 
actively investigating the subject of the complaint eliminates 
duplication and redundancy of State and Federal enforcement activities. 
For example, if OSMRE obtains readily available information that 
demonstrates that the State regulatory authority is actively 
investigating a citizen complaint, the OSMRE authorized representative 
may, using professional judgment, consider the State regulatory 
authority's action before determining whether reason to believe exists.
    In summary, this final rule clarifies the existing TDN regulations 
set forth at 30 CFR 842.11 and 842.12. Nothing in this final rule 
nullifies the statutory requirements that OSMRE must issue a TDN when 
it determines that there is reason to believe that a violation exists 
and that a State regulatory authority has ten days to respond. As is 
true with the existing regulations, the final rule requires that there 
are only two possible outcomes when an authorized representative 
reviews a citizen complaint: (1) The authorized representative issues a 
TDN because there is reason to believe a possible violation exists, or 
(2) the authorized representative declines to issue a TDN because he or 
she does not have reason to believe a possible violation exists. Under 
this final rule, the authorized representative does not have discretion 
to not issue a TDN to the State regulatory authority once he or she 
determines, based on professional judgment, that there is reason to 
believe that a violation exists; issuance of a TDN then becomes 
mandatory. If the information in the citizen complaint, along with any 
other readily available information, is not sufficient to formulate 
reason to believe, the authorized representative will not issue a TDN. 
Finally, to ensure transparency, OSMRE will continue the practice of 
sending a letter to the citizen complainant explaining the decision to 
issue or not issue a TDN and the rationale for this decision. It is 
standard OSMRE practice, absent a citizen complainant's request for 
confidentiality, to also provide the State

[[Page 75166]]

regulatory authority a copy of the letter to facilitate collaboration.

F. It is Important To Clarify That ``Any Information'' Under 30 U.S.C. 
1271(a) Includes Information From the State Regulatory Authority

    Comment: A coal industry group comprised of several companies in an 
Appalachian Basin-based coal State offered significant support for 
OSMRE's proposed clarification of the existing regulations related to 
the issuance of TDNs and the proposed enhancement of corrective action 
for State regulatory program issues. This group remarked that the 
proposed clarification to the existing regulations would allow 
regulatory authorities to use more information as part of their 
decision-making. Because, under the proposal, the regulations would 
clearly set forth that OSMRE will consider all readily available 
information prior to issuing a TDN, the commenter expressed that view 
that the proposed clarification would provide more transparency about 
the TDN process and allow for more cooperation between the State 
regulatory authority and OSMRE. The commenter also noted that the 
enhanced cooperation between OSMRE and the State regulatory authority 
would ensure that mine operations comply with SMCRA.
    The coal industry group commenter noted that allowing State 
regulatory authorities to provide information that is directly relevant 
to citizen complaints before OSMRE issues TDNs is positive and improves 
the process. The commenter pointed out that the clarification would be 
an improvement and would promote efficiency because the existing 
process may result in the issuance of a TDN despite the fact that the 
State regulatory authority has valuable information that is directly 
related to the alleged violation. The commenter noted that without 
relevant information from the State regulatory authority, OSMRE may not 
have an opportunity to consider the totality of the situation in 
advance, and such an omission decreases efficiency. The commenter also 
noted that frequently the State regulatory authority and OSMRE receive 
the same complaint resulting in both agencies undertaking duplicative 
investigations, which the commenter claimed is in contravention of 
section 201(c)(12) of SMCRA, 30 U.S.C. 1211(c)(12).
    Response: OSMRE concurs with these comments as they highlight the 
value of coordination between the primary SMCRA regulatory authority, 
which is the State regulatory authority, and OSMRE as the oversight 
authority. Although, in the TDN context, OSMRE is exercising oversight 
of State regulatory authorities, there is still room for up front 
cooperation between OSMRE and the State regulatory authority to 
minimize duplication of inspections, enforcement, and administration of 
SMCRA, as section 201(c)(12) of SMCRA, 30 U.S.C. 1211(c)(12), 
contemplates. Most importantly, OSMRE values the commenter's 
recognition of the positive impacts of the clarification OSMRE is 
adopting in this final rule as it will improve compliance with SMCRA by 
promoting cooperative federalism and ensuring that OSMRE considers all 
readily available information. For four decades OSMRE has observed that 
protecting society and the environment from the adverse effects of 
surface coal mining operations is accomplished more effectively and 
efficiently when State regulatory authorities--that have direct 
authority to administer SMCRA within their borders--and OSMRE work 
cooperatively, rather than working in isolation, to ensure timely 
resolution of issues. Not only does this coordination promote the 
cooperative federalism construct established within SMCRA, it more 
effectively achieves the purposes of SMCRA as outlined in section 102 
of SMCRA, 30 U.S.C. 1202. Specifically, considering a State regulatory 
authority's unique position to assess its approved State program, it 
makes sense to consult with the State regulatory authority to determine 
if steps have already been taken or are underway to address alleged 
violations. This commenter understands that, with OSMRE's consideration 
of all readily available information, including information provided by 
the State regulatory authority, the existing process is improved. 
However, OSMRE notes that being able to consider ``readily available 
information'' is not the same as being able to consider ``the totality 
of the situation in advance.'' Considering only ``readily available 
information'' up front will allow the process to proceed relatively 
quickly. Even with this distinction, OSMRE is confident that the 
clarification that OSMRE is adopting in this final rule will achieve 
the intended result of greater cooperation and a more efficient and 
effective enforcement of SMCRA.
    Comment: Several commenters objected to OSMRE's proposal to add 
``readily available'' to provisions at 30 CFR 842.11(b)(1)(i) and 
(b)(2) and 842.12(a), raising concerns that information that is not 
currently in OSMRE's possession and that has to be gathered does not 
constitute ``readily available information.'' Furthermore, one of these 
commenters opined that any delay resulting from gathering information 
was not acceptable and directly conflicts with the ``shall 
immediately'' order a Federal inspection language found in 30 U.S.C. 
1271(a)(1) and the existing regulations. Another commenter suggested 
that OSMRE's explanation of the proposed provision inserts more 
uncertainty into the TDN process because it does not define what OSMRE 
deems ``accessible without unreasonable delay.'' A commenter further 
opined that the language ``shall immediately'' in 30 U.S.C. 1271(a) 
requires OSMRE to accept only information submitted in a citizen 
complaint, rather than readily available information, to establish 
reason to believe that a violation exists.
    Response: With respect to the information OSMRE can consider when 
making a ``reason to believe'' determination, the statutory language is 
not as specific as the commenter suggests. As explained throughout this 
final rule notice, SMCRA grants the Secretary, acting through OSMRE, 
the authority to promulgate regulations that may be necessary to carry 
out the purposes and provisions of SMCRA. 30 U.S.C. 1211(c)(2). OSMRE 
is using SMCRA's rulemaking authority, in part, to specify the 
information that OSMRE's authorized representative can obtain and 
consider when making a ``reason to believe'' determination. The 
proposed rule language, which OSMRE is adopting in this final rule, is 
consistent with the statutory language at 30 U.S.C. 1271(a)(1) and 
allows an authorized representative to review information that is 
readily available. A more detailed discussion of the information that 
OSMRE considers to be ``readily available'' is contained elsewhere in 
the proposed rule preamble (85 FR at 28911) and in this final rule, but 
most certainly includes information that the OSMRE authorized 
representative can easily and promptly access, such as permit 
documentation about the specific mine site, OSMRE's inspection history, 
and data retrieved from the State regulatory authority. Fundamentally, 
as to the commenter's other point about the ``shall immediately'' 
language in 30 U.S.C. 1271(a), OSMRE notes that the statute provides, 
absent an imminent harm scenario, that OSMRE ``shall immediately order 
Federal inspection'' in a primacy State only after it issues a TDN to 
the State regulatory authority, and OSMRE finds that a violation 
remains uncorrected at the conclusion of the TDN process. The aspect of 
the final rule that the commenters take issue

[[Page 75167]]

with--OSMRE's consideration of readily available information as part of 
the ``reason to believe'' determination--occurs before OSMRE issues a 
TDN to a State regulatory authority and is therefore consistent with 
SMCRA. Importantly, at the conclusion of the TDN process, OSMRE will 
immediately undertake a Federal inspection if it finds that a violation 
continues to exist.
    Moreover, accepting only information contained in a citizen 
complaint as the basis for a ``reason to believe'' determination is not 
in accordance with prudent regulatory implementation as explained in 
the proposed rule. 85 FR at 28908, 28910-11. If OSMRE were to accept 
only information contained in a citizen complaint to establish ``reason 
to believe,'' OSMRE could be in a situation of issuing a TDN to a State 
regulatory authority when a complainant lacks information or knowledge 
concerning the possible violation that OSMRE may be able to readily 
ascertain under this final rule. OSMRE could also be in a situation of 
concluding that the citizen complaint does not establish ``reason to 
believe'' and refusing to issue a TDN, but for readily available 
information from the State regulatory authority that might otherwise 
establish ``reason to believe.'' Moreover, if OSMRE considers only 
information in a citizen complaint, the complaint process could be 
misused, unwittingly or otherwise, resulting in frivolous and unfounded 
allegations and unnecessary TDNs. Also, a fair reading of the 
legislative history supporting the passage of SMCRA indicates that 
considering only information in a citizen complaint when formulating 
reason to believe in association with the TDN process is not consistent 
with congressional intent. This issue was addressed in 1977 in House 
Report 95-218: ``[i]t is anticipated that `reasonable belief' could be 
established by a snapshot of an operation or other simple and effective 
documentation of a violation.'' Emphasis added. As noted in the 
proposed rule, while this passage from the legislative history appears 
to be referring to information that a citizen may provide, it is 
reasonable to apply the same principle to 30 U.S.C. 1271(a)(1), as 
enacted. This final rule is consistent with congressional intent in the 
formulation of SMCRA, and, more importantly, consistent with SMCRA, as 
enacted, with respect to information that can be used to establish 
reason to believe that a violation exists.
    Comment: A commenter indicated that OSMRE should consider all 
available information, not just readily available information, and 
should include information from any person and not just the State 
regulatory authority.
    Response: OSMRE has considered this comment and agrees that OSMRE 
should consider information from any source; however, as explained 
below, OSMRE disagrees that it should consider ``all available 
information'' rather than readily available information. OSMRE has 
revised the final rule text at 30 CFR 842.11(b)(1)(i) to further 
clarify that the authorized representative will consider all readily 
available information ``from any source, including any information a 
citizen complainant or the relevant State regulatory authority 
submits[.]'' This change reflects OSMRE's intent with respect to 
readily available information obtained from any source. For 
consistency, OSMRE has also incorporated the phrase ``from any source'' 
into revised 30 CFR 842.11(b)(2). The plain language of this revised 
text makes clear that OSMRE will consider information from any source 
and not just the two possible sources of information that OSMRE 
proposed to list as examples of sources--the State regulatory authority 
and a citizen. As OSMRE stated in the preamble to the proposed rule, 
other examples of sources of readily available information may also 
include permit files or other public records. 85 FR at 28911.
    The only limitation as to the source of information that OSMRE's 
authorized representative can consider is that the information must be 
readily available. As stated in the proposed rule, inclusion of the 
word ``readily available'' to modify ``any information'' is important 
to ensure that the process of making a ``reason to believe'' 
determination proceeds as quickly as possible and does not become open-
ended. 85 FR at 28907; see also OSMRE's other responses in this 
section. If OSMRE were to delay its ``reason to believe'' determination 
until all available information was discovered, there could be 
substantial delays in the process, which would be contrary to the 
process Congress set forth in 30 U.S.C. 1271(a)(1). Substantial delays 
in determining ``reason to believe'' would also be contrary to a goal 
of this rulemaking--ensuring that alleged violations are addressed 
quickly, effectively, and efficiently. Thus, OSMRE is not making a 
change to its proposed rule to consider all information that could 
possibly be obtained; OSMRE will consider only that information which 
is readily available.
    Comment: One commenter expressed doubt about OSMRE's rationale for 
clarifying that a State regulatory authority should be a source of 
information necessary to formulate reason to believe. Specifically, the 
commenter expressed doubt that OSMRE and the State regulatory 
authorities are inundated with duplicative complaints.
    Response: SMCRA provides that OSMRE will issue a TDN ``[w]henever, 
on the basis of any information available to him, including receipt of 
information from any person, the Secretary has reason to believe that 
any person is in violation of any requirement of this Act. . . .'' 30 
U.S.C. 1271(a)(1) (emphasis added). A plain reading of this provision 
is that OSMRE can consider any information it has available regardless 
of the source. It is only natural that a State regulatory authority 
could be a source of information that OSMRE's authorized representative 
uses to formulate reason to believe.
    OSMRE has not claimed that it is ``inundated'' with citizen 
complaints that have also been issued to the State regulatory 
authority. However, OSMRE has experienced many instances where it has 
received a citizen complaint that was identical to a citizen complaint 
received by a State regulatory authority. When this has occurred, 
oftentimes OSMRE has learned that the State regulatory authority was 
either already investigating the alleged violation or had reached a 
decision about the alleged violation. Such information would be useful 
to OSMRE in formulating reason to believe. It has been a regulatory 
requirement since 1982 that, when requesting a Federal inspection, 
citizens are required to submit complaints to the State regulatory 
authority before or simultaneously with submitting the complaint to 
OSMRE. 47 FR at 35628. In OSMRE's experience, and based upon data 
acquired over 43 years of implementing SMCRA, it has become obvious, as 
OSMRE expected in 1982, that ``if citizens contact the State initially, 
most problems will be resolved satisfactorily without the need for 
intrusion by the Federal government.'' Id. Thus, it only makes sense 
for OSMRE to revise the SMCRA implementing regulations to allow OSMRE's 
authorize representative to consider readily available information from 
the State regulatory authority that is relevant to the possible 
violation before OSMRE issues a TDN. That way, OSMRE and the State 
regulatory authority can avoid an unnecessary exchange of paperwork 
instead of resolving alleged violations. This simple change will make 
the process more

[[Page 75168]]

effective and will conserve scarce government resources.
    Comment: A commenter supported the proposed rule clarification at 
30 CFR 842.11(b)(1)(i) and (b)(2) that would allow OSMRE to consider 
any information readily available when determining whether there is 
reason to believe that a violation exists. The commenter, which 
represents the coal industry, added that it is appropriate for OSMRE to 
provide these clarifications to the process so that OSMRE can determine 
whether information submitted in a citizen complaint constitutes 
documentation of alleged violations; the commenter also notes that 
OSMRE must have the authority to evaluate information objectively in 
order to determine the validity of allegations. Further, the commenter 
supports OSMRE's ability to review readily available information, from 
any source, including information that may be available to the State 
regulatory authorities. The commenter finds that this would allow OSMRE 
to more accurately identify the specific nature of an alleged violation 
or program issue identified by a citizen. Moreover, the commenter 
stated that the clarification would provide OSMRE an opportunity to 
apply a remedy that most appropriately corresponds to the alleged 
violation--whether it is a permit specific violation, on-the-ground 
violation, or is better characterized as a State regulatory program 
issue.
    Response: OSMRE agrees with the commenter that it is necessary for 
the OSMRE authorized representative to consider any information readily 
available when formulating reason to believe. This clarification 
specifies that information provided by the State regulatory authority 
is included in the ``any information'' that an OSMRE authorized 
representative may consider, consistent with 30 U.S.C. 1271(a), while 
also highlighting the importance of timely formulation of reason to 
believe to ensure prompt resolution of a possible violation. The latter 
point is clarified by OSMRE adopting the proposal to include the word 
``readily'' in 30 CFR 842.11(b)(1)(i) and (b)(2). Also, the 
clarification of 30 CFR 842.11(b)(2), which OSMRE is adopting in this 
final rule, codifies OSMRE's flexibility to more appropriately analyze 
and identify the existence of violations, and, if necessary, to issue a 
TDN or use the enhanced part 733 process for a State regulatory program 
issue. The ability to efficiently and effectively differentiate between 
violations addressed under revised section Sec.  842.11 and State 
regulatory program issues, as defined in this final rule and addressed 
under revised Sec.  733.12, is an important point. As the regulations 
currently exist, there is ambiguity related to these two distinct 
resolutions of problems that may be alleged in citizen complaints--
those outlined in section 521(a) of SMCRA (site-specific) and those 
outlined in section 521(b) of SMCRA (program issue). As the commenter 
notes, it is important to clearly differentiate between site-specific 
alleged violations governed by section 521(a) and 30 CFR part 842, 
under which the TDN process is invoked, and State regulatory program 
issues related to a State regulatory authority's alleged failure to 
implement, administer, maintain, or enforce its approved program 
governed by section 521(b) of SMCRA and 30 CFR part 733. In this final 
rule, OSMRE is seeking to eliminate this ambiguity and afford OSMRE the 
discretion to resolve site-specific violations and program issues by 
the most appropriate method while working in coordination with the 
State regulatory authority.

G. Citizens' Ability To Request Federal Inspections Is Not Diminished

    As discussed throughout OSMRE's responses to comments received, 
several commenters expressed concern over the impact of the proposed 
rule on Federal inspections, while other commenters offered suggestions 
for further altering the regulations related to requesting Federal 
inspections pursuant to 30 CFR 842.12.
    Comment: A commenter challenged OSMRE's proposed language in Sec.  
842.12(a) requiring a citizen, when requesting a Federal inspection, to 
provide the basis for their assertion that a State regulatory authority 
failed to act upon an alleged violation.
    Response: As proposed and finalized in this rule, this provision 
will not be overly burdensome for a citizen complainant. For example, 
if the complainant notifies the State regulatory authority 
simultaneously with filing a complaint with OSMRE, the basis for the 
person's assertion could be as simple as restating the allegations in 
the complaint made to the State regulatory authority, coupled with the 
action, if any, taken by the State regulatory authority in response. 
However, OSMRE notes that a citizen complainant should provide as much 
information as possible, as that information will inform the OSMRE 
authorized representative's ``reason to believe'' determination. In all 
cases, OSMRE's authorized representative will consider readily 
available information, in addition to any information that the 
complainant may provide, as part of the authorized representative's 
``reason to believe'' determination. As noted previously, requiring the 
citizen complainant to notify the State regulatory authority before or 
simultaneously with filing a request for a Federal inspection with 
OSMRE will give the State regulatory authority an opportunity to 
address the issue raised. This requirement is not unreasonable and 
should help prevent duplicative efforts.
    Comment: A commenter requested that OSMRE amend Sec.  842.12(a) to 
incorporate text contained in 30 U.S.C. 1267(h)(1) by inserting the 
phrase ``at the surface mining site'' after the word ``exists'' in the 
first sentence in proposed Sec.  842.12(a), so that it would read: Any 
person may request a Federal inspection under Sec.  842.11(b) by 
providing to an authorized representative a signed, written statement 
(or an oral report followed by a signed written statement) setting 
forth information that, along with any other readily available 
information, may give the authorized representative reason to believe 
that a violation, condition, or practice referred to in Sec.  
842.11(b)(1)(i) exists [at the surface mining site]. The commenter 
suggested that the same change be made to proposed Sec.  
842.11(b)(1)(i) by inserting the same phrase in the first sentence 
after the first appearance of the word ``exists'' and before the term 
``a violation'' in the middle of the first sentence to limit citizen 
complaints, and any accompanying inspection, to on-the-ground impacts.
    Response: OSMRE declines to make the suggested change because SMCRA 
does not include this language in 30 U.S.C. 1271(a). As explained 
elsewhere in this final rule, if a citizen complainant makes OSMRE 
aware of a State regulatory program issue that has not resulted in 
actual or imminent violation of the approved State program that often 
manifests as an on-the-ground impact at a specific site, OSMRE will 
handle the issue initially through the enhancements to the 30 CFR part 
733 process adopted in this final rule. However, as noted repeatedly, 
OSMRE will still initiate an appropriate Federal enforcement action, 
such as issuance of a TDN, if the State regulatory program issue 
results in, or may imminently result in, a violation of the approved 
State program.
    Comment: A commenter requested that OSMRE clarify that a request 
for a Federal inspection under 30 CFR 842.12 may be denied if it is 
clear that the request is a repeat of substantially identical requests 
made by the same person on the same issue.

[[Page 75169]]

    Response: This rulemaking does not provide that OSMRE will 
automatically deny a request for a Federal inspection simply because a 
substantially identical request has been made previously. Instead, this 
rulemaking requires OSMRE to make a fact-specific determination each 
time it receives a citizen complaint or other allegation of a 
violation.
    First, the OSMRE authorized representative must determine whether 
the alleged violation would constitute imminent harm. If so, OSMRE will 
bypass the TDN process and will proceed directly to a Federal 
inspection if the person supplying the information (usually in the form 
of a citizen complaint) provides adequate proof that there is an 
imminent danger to the public health and safety or a significant, 
imminent environmental harm and the State has failed to take 
appropriate action. See 30 U.S.C. 1271(a)(1) and (2). Nothing in this 
final rule is intended to modify these essential provisions of SMCRA 
and the existing regulations, which are aimed at immediately 
identifying and correcting imminent harm scenarios.
    Second, the OSMRE authorized representative must issue a TDN to a 
State regulatory authority whenever he or she has reason to believe a 
violation exists. 30 U.S.C. 1271(a)(1) and 30 CFR 842.11(b)(1). The 
final rule makes clear that when determining whether he or she has 
``reason to believe,'' OSMRE's authorized representative must make a 
fact-specific inquiry based on readily available information. 30 CFR 
842.11(b)(1)(i). If OSMRE has already received a similar citizen 
complaint or if a substantially identical complaint has been filed with 
the State regulatory authority, and the State regulatory authority has 
investigated the matter, OSMRE may have more information readily 
available to determine if it has reason to believe a violation exists. 
Such information could lead the OSMRE authorized representative to 
determine that he or she does not have ``reason to believe'' because 
earlier, similar complaints had not revealed a violation. Similarly, if 
OSMRE has already issued a TDN based on a previously received similar 
complaint, it is unlikely that OSMRE will have reason to believe that 
another violation exists; without the requisite ``reason to believe,'' 
the authorized representative will not issue another TDN. Instead, as 
has been OSMRE's practice, OSMRE will inform the citizen in writing 
that subsequent citizen complaints are already being resolved through 
an existing TDN process, and a new TDN process will not be initiated. 
OSMRE will retain all citizen complaints in the record of the existing 
TDN process. It is also possible, however, that the OSMRE authorized 
representative will review what seems to be a similar complaint and 
formulate reason to believe that a different or renewed violation 
exists. In that scenario, the OSMRE authorized representative will 
issue a new TDN. Although many variations are possible, the OSMRE 
authorized representative will consider the facts alleged in each 
citizen complaint and any other readily available information before 
deciding if he or she has reason to believe a violation exists.
    Comment: A commenter suggested that OSMRE clarify the final rule 
text at 30 CFR 842.12 to require citizens to exhaust all remedies 
afforded to them under each respective State regulatory program before 
requesting a Federal inspection. The commenter further opined that 
OSMRE should better delineate between the process it will follow when 
it receives a request for a Federal inspection in a State where OSMRE 
operates a Federal program and a primacy State. For primacy States, the 
commenter states that OSMRE should defer to the State process under 
which the alleged violation occurs, including the exhaustion of all 
State remedies.
    Response: Nothing in SMCRA authorizes OSMRE to require that a 
citizen exhaust their remedies under a State regulatory program before 
requesting a Federal inspection. See 30 U.S.C. 1267(h)(1) and 
1271(a)(1). Thus, OSMRE did not propose and is not finalizing a rule 
that would require a citizen to exhaust its remedies under a State 
program before requesting a Federal inspection from OSMRE. OSMRE notes, 
however, that by clarifying that OSMRE's authorized representative can 
review information from a State regulatory authority before determining 
whether he or she has ``reason to believe,'' OSMRE is recognizing that 
a State regulatory authority, as the primary SMCRA enforcement agency 
within its jurisdiction, is likely to have relevant information. 
Although the OSMRE authorized representative will make an independent 
determination of his or her ``reason to believe,'' this change better 
recognizes the State regulatory authority's expertise.
    In response to the commenter's suggestion that OSMRE should 
delineate between situations where the State regulatory authority is 
the primacy enforcement authority--as in most situations--and when 
OSMRE is the primary regulatory authority, such as in the State of 
Tennessee, OSMRE reviewed its regulations and concluded that 30 CFR 
part 842, as finalized today, clearly distinguishes between OSMRE's 
oversight function in monitoring and evaluating the administration of 
approved State programs, including inspections and enforcement of 
Federal programs. Compare 30 CFR 842.11(b)(1)(ii)(A) (Federal program 
states) with 30 CFR 842.11(b)(1)(ii)(B) (primacy states). As specified 
in these regulations, the TDN process does not apply to Federal 
programs, where OSMRE is the regulatory authority.
    Comment: One commenter supported the proposed addition to 30 CFR 
842.12(a) requiring that a citizen provide an email address, if the 
citizen possesses one, when submitting the statement required to 
accompany a request for a Federal inspection.
    Response: OSMRE agrees and is adopting this proposal in the final 
rule to allow for a more expeditious manner to contact citizen 
complainants, if necessary.

H. OSMRE's Enhancement to the Existing 30 CFR Part 733 Process is Aimed 
at Addressing State Regulatory Program Issues Early and Promptly 
Resolving the Issues

    Comment: Several commenters opine that the 30 CFR part 733 process 
is an inadequate method of dealing with State regulatory program issues 
because it creates a delay in enforcement. These same commenters also 
claim that the existing 30 CFR part 733 process does not require prompt 
action by the State regulatory authority because of the public notice 
requirement found in existing 30 CFR 733.12(d).
    Response: OSMRE agrees with the commenters that use of the existing 
30 CFR part 733 process can take more time than is warranted to address 
issues requiring a timely response. However, the use of action plans as 
described in the finalized and redesignated Sec.  733.12 does not have 
the same time requirements that are associated with existing Sec.  
733.12, which will be redesignated as 30 CFR 733.13 under this final 
rule. This will promote more prompt resolution of State regulatory 
program issues, as these issues will be identified prior to the issues 
escalating to the point where substitution of Federal enforcement or 
withdrawing part or all of a State program are necessary. Moreover, as 
OSMRE has repeatedly noted, even if OSMRE and the State regulatory 
authority are engaged in the corrective action process, including 
developing an action plan pursuant to the enhanced provisions of 30 CFR 
part 733, finalized in this rulemaking, the State regulatory authority 
and OSMRE will still take an

[[Page 75170]]

appropriate enforcement action if there is an actual or imminent 
violation of the approved State program. In OSMRE's experience, a 
violation of the approved State program often manifests itself as an 
on-the-ground impact, but may also manifest by other means, such as a 
failure to submit a required certification or monitoring report.
    Comment: A few commenters asserted that the existing process 
outlined in 30 CFR part 733 has only been used 10 times in the history 
of SMCRA.
    Response: OSMRE agrees with the commenters that OSMRE has used the 
30 CFR part 733 process infrequently since the inception of SMCRA. 
Prior to the enhancements to 30 CFR part 733, finalized in this 
rulemaking, the existing 30 CFR part 733 process, which was limited to 
substituting Federal enforcement of State programs or withdrawing 
approval of part or all of a State program, was a lengthy process that 
involved significant OSMRE and State regulatory authority interaction 
over a long period. The seriousness of substitution or withdrawal of 
State regulatory programs (whether in whole or in part), when 
necessary, should not be minimized, and OSMRE continues to find that 
this process is prudent. However, this type of enforcement mechanism is 
not well-suited to smaller, non-imminent harm issues that may require a 
much shorter time frame to effectuate resolution. This final rule does 
not change the fact that imminent harm issues will continue to be 
addressed promptly through Federal enforcement, as appropriate, to 
protect public health and safety. OSMRE's proposal to use early 
identification of State regulatory program issues and implement 
corrective action through action plans and to use Federal enforcement 
for site-specific violations bridges the two enforcement mechanisms of 
the existing 30 CFR part 733 process, as outlined in 30 U.S.C. 1271(b), 
and the TDN process, as outlined in 30 U.S.C. 1271(a). Development of a 
definition of ``State regulatory program issue'' and the use of 
compliance strategies and action plans to address State regulatory 
program issues before these issues develop into a more systemic, and 
potentially more environmentally harmful program issue requiring 
substitution of Federal enforcement or withdrawal of a State program, 
is much more efficient, addresses issues earlier, and potentially 
reduces the need to invoke the rare remedies of existing 30 CFR part 
733. The intermediate process adopted in this final rule should 
minimize or prevent any unnecessary burdens as OSMRE and the State 
regulatory authority promptly resolve the State regulatory program 
issue.
    Comment: A commenter supported the proposed addition at 30 CFR 
733.5 of the definition of ``action plan'' and the explanation in the 
proposed rule that an ``action plan'' would be an efficient means of 
addressing State regulatory program issues. The commenter also favors 
the concept of identifying these issues early to avoid OSMRE exercising 
its oversight authority in the form of substitution or withdrawal of an 
approved State program.
    Response: OSMRE agrees with these comments because, overall, 
OSMRE's final rule clarifications and enhancements at 30 CFR parts 733 
and 842 will enable OSMRE to more quickly identify whether an alleged 
violation requires more immediate resolution through 30 CFR part 842 
and the potential issuance of a TDN or whether the problem should be 
more appropriately and effectively handled through the 30 CFR part 733 
process because it is a State regulatory program issue, as defined in 
this final rule, or a systemic problem within the approved program. 
This is a necessary distinction as set forth in SMCRA at 30 U.S.C. 
1271(a) and (b). The latter statutory provision--30 U.S.C. 1271(b)--is 
aimed at correcting systemic, programmatic issues with State programs. 
Under this final rule, OSMRE will handle State regulatory program 
issues under the authority of section 1271(b). It is imperative for the 
Federal regulations to comport with this distinction. One of the 
reasons OSMRE proposed to specifically define the term ``State 
regulatory program issue'' is that, after four decades of oversight 
enforcement, citizens have sometimes conflated the provisions of 
sections 1271(a) and 1271(b), resulting in frustration, duplication, 
and unnecessary complication of the TDN process, which was designed to 
quickly address on-the-ground impacts. Moreover, not properly 
distinguishing the actions available under 30 U.S.C. 1271 has resulted 
in inefficient use of Federal and State resources, as it frequently 
resulted in duplication of State and OSMRE efforts without any clear 
environmental benefit. OSMRE's enhancements and clarifications in this 
final rule that distinguish features of the remedies for potential 
violations and State regulatory program issues will improve efficiency 
and effectiveness by appropriately narrowing the focus of 30 CFR part 
842 because, under this final rule, State regulatory program issues 
will be addressed using the ``action plan'' process in final 30 CFR 
733.12. OSMRE's ``action plan'' concept, which OSMRE is adopting in 
this final rule through the definition of ``action plan'' at 30 CFR 
733.5 and the regulatory provisions at 30 CFR 773.12(b), will enhance 
OSMRE's ability to resolve programmatic issues as quickly as possible, 
resulting in better implementation of SMCRA. Furthermore, the addition 
of this enhancement will result in OSMRE taking action in advance of 
the rare remedies of withdrawal or substitution of an approved State 
program.
    Comment: Similar to other commenters, as discussed above, that 
recognize the value in the enhancement of the existing 30 CFR part 733 
process, a commenter also agrees with the proposed rule clarification 
that would allow programmatic concerns that OSMRE may identify 
involving a State regulatory authority to be handled outside the TDN 
process because programmatic concerns are more appropriately addressed 
under section 521(b) of SMCRA, 30 U.S.C. 1271(b), and the Federal 
regulations implementing that section. The commenter also supports 
OSMRE's proposed, minor revision to the circumstances that constitute 
``good cause'' at existing Sec.  842.11(b)(1)(ii)(B)(4) and OSMRE's 
proposed clarification of what constitutes ``reason to believe'' at 
existing Sec.  842.11(b)(2). The commenter supported the proposed, 
minor revisions to the ``good cause'' provisions at existing 30 CFR 
842.11(b)(1)(ii)(B)(4)(ii) because, after OSMRE issues a TDN to a State 
regulatory authority, ``good cause'' for the State regulatory authority 
not taking appropriate action to cause an alleged violation to be 
corrected includes a State regulatory authority's initiation of an 
investigation into the alleged violation, and a reasonable amount of 
time is required to complete that investigation before OSMRE initiates 
a Federal inspection.
    Response: OSMRE agrees with the commenter's statements about how 
the proposed rule would clarify the terms ``reason to believe'' and 
``good cause,'' which should greatly reduce the number of situations 
when these terms, as implemented under the existing regulations, may 
have thwarted successful collaboration between OSMRE and the relevant 
State regulatory authority. OSMRE appreciates the commenter's support 
for the provision that OSMRE is adopting in this final rule that allows 
initiation of an investigation into an alleged violation to establish 
good cause. Moreover, successful collaboration between OSMRE and the 
State regulatory

[[Page 75171]]

authority is a lynchpin to successful enforcement of SMCRA and State 
regulatory programs and is necessary under SMCRA's cooperative 
federalism framework. The provisions OSMRE is adopting in this final 
rule will enhance OSMRE's ability to consult with the State regulatory 
authority to efficiently and effectively solve problems. Implementation 
of OSMRE's proposed changes, which OSMRE is adopting in this final 
rule, will result in OSMRE being able to act more quickly to 
differentiate between violations that need immediate attention, and 
systemic program problems that are appropriately addressed through the 
existing 30 CFR part 733 process. In OSMRE's experience, OSMRE has 
observed that the existing TDN process frequently results in a State 
regulatory authority and OSMRE engaging in unnecessary duplication of 
effort and processes rather that working cooperatively to quickly 
resolve problems. This is contrary to the intent of section 201(c)(12) 
of SMCRA, which requires OSMRE to ``cooperate with . . . State 
regulatory authorities to minimize duplication of inspections, 
enforcement, and administration of [SMCRA].'' 30 U.S.C. 1211(c)(12). 
Furthermore, the implementation of the relevant clarifications in 
OSMRE's proposed rule, which OSMRE is adopting in this final rule, is 
consistent with E.O. 13777 of February 24, 2017, 82 FR 12285 (March 1, 
2017). E.O. 13777 is aimed at alleviating unnecessary regulatory 
burdens placed on the American people, and this final rule achieves 
that goal by removing unwarranted duplication of processes by OSMRE and 
State regulatory authorities.
    Comment: Unlike other commenters supporting the enhancement of 30 
CFR part 733, regarding OSMRE's proposal to codify the process of early 
identification and corrective action to address State regulatory 
program issues as authorized by 30 U.S.C. 1271(b), a citizen commenter 
asserts that historically OSMRE had stronger oversight capabilities and 
that the proposed rule clarification is an attempt to redress OSMRE's 
alleged loss of oversight authority to resolve problems with State 
regulatory enforcement and recapture OSMRE oversight capabilities after 
State primacy is achieved. The citizen commenter expressed the concern 
that the 30 CFR part 733 process is like using a club to fix what is 
wrong with State enforcement. As an alternative, the commenter suggests 
repealing OSMRE's Directive REG-8 as a more effective tool than trying 
to enhance 30 CFR part 733. The commenter provided an example of the 
alleged slowness of a State regulatory authority's response to a 
recently filed citizen complaint. The commenter also asserts that OSMRE 
is attempting to address on-the-ground violations through the 30 CFR 
part 733 process, not through the TDN process. Notably, the citizen 
acknowledges that the rationale for citizens to notify both the State 
regulatory authority and OSMRE serves a positive purpose--essentially 
to ensure checks and balances resulting in more prompt resolution of 
issues.
    Response: SMCRA and the implementing regulations provide OSMRE with 
two primary tools to ensure that a State regulatory authority is 
enforcing its approved program appropriately. First, SMCRA provides 
that, in certain circumstances, OSMRE may issue a notice of violation 
or cessation order directly to a permittee in a primacy State; the 
circumstances in which OSMRE can exercise direct Federal enforcement 
are outlined in 30 U.S.C. 1271(a) and 30 CFR parts 842 and 843. One 
relevant example of OSMRE's ability to engage in direct Federal 
enforcement is OSMRE performing a Federal inspection after determining 
that the State regulatory authority lacked good cause or did not take 
appropriate action to cause a violation to be corrected after OSMRE 
reviews the State regulatory authority's response to a TDN. 30 U.S.C. 
1271(a)(1) and 30 CFR 842.11. The second tool OSMRE can use is outlined 
in 30 U.S.C. 1254(b), 1271(b), and 30 CFR part 733. This tool allows 
OSMRE to address a failure of a State to effectively enforce all or 
part of its State program. Under these provisions, OSMRE may substitute 
Federal enforcement for all or part of a State regulatory program or 
withdraw approval of all or part of a State program.
    These two mechanisms are distinct and should not be conflated--one 
involves potential violations at specific sites, and one involves more 
systemic issues in State program enforcement. While it is true that, 
sometimes, a systemic issue with a State program can manifest itself in 
a violation at a site, it is also true that the TDN process is not the 
appropriate tool for resolving systemic, programmatic issues. Instead, 
the TDN process is designed to address alleged violations associated 
with individual permits. Importantly, however, Sec.  733.12(d), as 
proposed and adopted in this final rule, provides that nothing in Sec.  
733.12 ``prevents a State regulatory authority from taking direct 
enforcement action in accordance with its State regulatory program, or 
OSMRE from taking appropriate oversight enforcement action, in the 
event that a previously identified State regulatory program issue 
results in or may imminently result in a violation of the approved 
State program.'' This provision will ensure that actual or imminent 
violations of an approved State program that often manifest in on-the-
ground impacts, but may manifest by other means, are properly addressed 
even as OSMRE and a State regulatory authority are working to correct 
State regulatory program issues.
    Despite the distinction between a site-specific violation and a 
systemic issue, OSMRE has received citizen complaints (i.e., the site-
specific process) that allege a State regulatory program issue (i.e., a 
systemic issue). The regulatory revisions that OSMRE proposed, and that 
OSMRE is finalizing today, help to clarify the distinction between when 
OSMRE will use specific oversight tools--such as direct enforcement 
through the TDN process as opposed to an action plan under revised 
Sec.  733.12. Specifically, the revision to the description of 
``appropriate action'' at 30 CFR 842.11(b)(1)(ii)(B)(3) clarifies that, 
if OSMRE issues a TDN, and the State responds that it is working with 
OSMRE to ``immediately and jointly'' initiate steps to correct the 
systemic State regulatory program issue under 30 CFR 733.12, that 
response will be considered appropriate action, and OSMRE will not 
continue with the direct Federal enforcement process and will not 
perform a Federal inspection. Instead, OSMRE and the State regulatory 
authority will work to develop an action plan as set forth in revised 
30 CFR 733.12 to address the underlying State regulatory program issue. 
To the extent that a systemic problem has resulted in a violation of 
the approved State program at a particular site, OSMRE will continue to 
use its direct Federal enforcement authority, including the TDN 
process, if warranted, to ensure such violation is corrected. This 
final rule serves to differentiate more accurately between the two 
distinct processes of oversight outlined in 30 CFR part 733 and 30 CFR 
parts 842 and 843. OSMRE's existing approach has demonstrated that a 
clarification of the distinction between these two processes is 
necessary to ensure that proper enforcement of SMCRA is achieved.
    OSMRE understands the commenter's concern that 30 CFR 
842.11(b)(1)(ii)(B)(3) refers to 30 CFR part 733, and OSMRE agrees with 
the commenter that, traditionally, using the existing part 733 process 
to cause the Federal enforcement of State regulatory programs or the 
withdrawal of approval of State regulatory programs is fairly

[[Page 75172]]

severe and has been rarely used. However, OSMRE also proposed, and is 
finalizing, the addition of Sec.  733.5 that specifically defines 
``action plan'' and ``State regulatory program issue'' as used in final 
Sec.  733.12, which specifically provides a process for OSMRE and a 
State regulatory authority to enter into an action plan to address 
systemic problems. The addition of the action plan process will allow 
OSMRE to more easily address, with the cooperation of the State 
regulatory authority, situations where an alleged violation can be 
traced to a systemic problem within an existing State regulatory 
program. This addition is consistent with SMCRA's cooperative 
federalism approach, and OSMRE expects to use revised 30 CFR 733.12 
more frequently than it has traditionally used its authority to 
substitute Federal enforcement or withdraw State program approval 
because it will allow OSMRE to work with a State regulatory authority 
to cooperatively correct a State regulatory program issue.
    The commenter also suggested that repealing OSMRE's Directive REG-8 
would be a more effective tool for ensuring enforcement of SMCRA than 
the proposed revisions to 30 CFR part 733. OSMRE's Directive REG-8 is a 
detailed instructional document advising OSMRE staff on best practices 
for performing oversight consistent with 30 U.S.C. 1271. Within 
Directive REG-8, OSMRE identifies two types of regular oversight 
activities it uses to ensure a State regulatory authority is 
effectively administering, implementing, maintaining, and enforcing its 
approved regulatory program consistent with 30 U.S.C. 1271(b) and 30 
CFR part 733. First, OSMRE prepares a report annually evaluating each 
State regulatory program. As set forth in Directive REG-8, each year, 
OSMRE uses certain fixed topics, such as off-site impacts and 
reclamation success, to evaluate the State regulatory authority. Each 
year, OSMRE also selects special topics for review. These special 
topics are chosen, in part, based on suggestions from the public. 
Second, OSMRE conducts inspections of surface coal mining and 
reclamation operations as necessary to monitor and evaluate the 
administration of approved State programs in accordance with 30 CFR 
part 842. This Directive is an internal document that OSMRE uses to 
ensure consistency across the bureau and to provide transparency to 
stakeholders on how OSMRE operates with respect to its routine 
evaluation of State regulatory authorities. Elimination of Directive 
REG-8 would increase the likelihood that various OSMRE offices would 
approach annual evaluation reports and oversight inspections 
differently, which could result in a lack of clarity for the public. 
For this reason, elimination of Directive REG-8 would not be a more 
effective method to implement change.
    The regulations, as finalized, better distinguish between the 
distinct oversight tools authorized by 30 U.S.C. 1271, by better 
explaining when OSMRE will use each tool. As such, the finalized 
regulations encourage efficiency and effectiveness when resolving 
alleged violations and State regulatory program issues by categorizing 
them appropriately and eliminating wasteful administrative processes 
that may hinder prompt resolution.
    OSMRE also acknowledges that citizens may determine that filing 
citizen complaints with both OSMRE and a State regulatory authority may 
be beneficial. However, in OSMRE's experience, State regulatory 
authorities are typically in a better position to respond quickly and 
ensure that violations are corrected. OSMRE has long since acknowledged 
that ``if citizens contact the State initially, most problems will be 
resolved satisfactorily without the need for intrusion by the Federal 
government.'' 47 FR at 35628. That is why, since 1982, OSMRE has 
required that a citizen notify a State regulatory authority ``in 
writing, of the existence of the violation, condition or practice'' 
before or simultaneously with notifying OSMRE of a request for Federal 
inspection. OSMRE still finds, as it did in 1982, that ``this citizen 
notification requirement will enhance the protection of citizens by 
giving the State an earlier opportunity to act. Information from a 
person can be transmitted to a State regulatory authority quickly and 
accurately when a citizen communicates directly with the State.'' Id. 
Thus, OSMRE has maintained the requirement in 30 CFR 842.12(a) to 
require a citizen, when requesting a Federal inspection, to inform 
OSMRE that the citizen has contacted the State regulatory authority. 
Additionally, OSMRE is finalizing the proposal that a citizen, when 
requesting a Federal inspection, also provide a basis for why the 
citizen asserts that the State regulatory authority has not taken 
action. This information will help OSMRE's authorized representative 
better ascertain whether the citizen followed the regulation by 
notifying the State regulatory authority and what information may exist 
that would be useful in determining whether the authorized 
representative has reason to believe a violation exists.
    Comment: One commenter opined that OSMRE needs to codify the 
process for the action plan.
    Response: Through this rulemaking, OSMRE is codifying the process 
for developing and using action plans to correct systemic State 
regulatory program issues. Currently, OSMRE uses a variation of this 
process as set forth in its Directives REG-8 and REG-23. As long as 
they are not arbitrary and capricious or contrary to SMCRA's specific 
statutory language, section 201(c)(2) of SMCRA confers on the Secretary 
of the Interior broad authority to ``publish and promulgate such rules 
and regulations as may be necessary to carry out the purposes and 
provision of this Act.'' 30 U.S.C 1211(c)(2); see also In re Permanent 
Surface Min. Regulation Litig., 653 F.2d 514, 523 (D.C. Cir. 1981) (en 
banc)); Nat'l Min. Ass'n v. U.S. Dep't of the Interior, 105 F.3d 691, 
695 (D.C. Cir. 1997).
    Section 521(b) of SMCRA provides that ``[w]henever on the basis of 
information available to him, the Secretary has reason to believe that 
violations of all or any part of an approved State program result from 
a failure of the State to enforce such State program or any part 
thereof effectively,'' the Secretary must initiate a process that could 
result in OSMRE substituting Federal enforcement for all or part of a 
State regulatory program or withdrawing approval of all or part of a 
State regulatory program. 30 U.S.C. 1271(b); see also 30 U.S.C. 
1254(a). This rulemaking is not contrary to these provisions of SMCRA 
because it allows OSMRE to work with a State to correct a systemic 
issue that OSMRE has identified with a State program. The mere fact 
that a State is willing to work with OSMRE in good faith to correct a 
problem shows that it is working to adequately implement, administer, 
enforce, and maintain its approved program. Logically then, OSMRE would 
not have ``reason to believe'' under 30 U.S.C. 1271(b) that the State 
is failing to enforce its program effectively. Thus, no statutory 
change is needed for OSMRE to promulgate this regulation.
    Comment: One commenter suggested specific changes to OSMRE's 
proposed definition of ``action plan'' at 30 CFR 733.5 to mean a 
``detailed list of specific actions and the schedule OSMRE prepares to 
identify specific actions . . . .'' The suggested definition of 
``action plan'' would also list examples of specific actions such as: 
Compliance with what the commenter has classified as ``Federal 
environmental regulations'' that the commenter later defines as 
``Federal regulations,'' but which actually consist of Federal

[[Page 75173]]

environmental statutes, that include, among others, the Migratory Bird 
Treaty Act and the Clean Water Act; public notification and 
involvement; and dates in which State regulatory issues are to be 
resolved. The commenter requested that its proposed definition of 
``action plan'' include ``specific information on compliance measures 
including timelines, success criteria, and contingency plans in the 
event the success criteria are not reached.'' The commenter also 
suggested the addition of new definitions at Sec.  733.5 for many of 
the terms included in its proposed definition of ``action plan,'' such 
as ``adequate funding'' and ``public notification and involvement.'' 
According to the commenter, these definitions would work in conjunction 
with the commenter's suggested revisions to the term ``action plan.'' 
For instance, the commenter indicated that an ``adequate funding'' 
definition would be useful to ensure that the State regulatory 
authority has sufficient funds to carry out compliance and mitigation 
measures described in the action plan. Likewise, the commenter 
suggested that the addition of ``public notification and involvement'' 
would include a list of various public notification methods and 
techniques relating to notifying the public.
    Response: OSMRE disagrees that the appropriate location for the 
items suggested by the commenter is within the definitions at 30 CFR 
733.5. OSMRE proposed most of the items suggested by the commenter at 
revised 30 CFR 733.12(b), which details what should be included in an 
action plan, such as the requirements that an action plan contain 
specific dates and timelines of when the State regulatory program issue 
is to be resolved and contingency plans if success is not achieved.
    As to the suggested definition of ``adequate funding,'' State 
regulatory authorities must demonstrate that they have ``sufficient 
funding to enable the State to regulate surface coal mining and 
reclamation operations in accordance with the requirements of this 
Act.'' 30 U.S.C. 1253(a)(3). OSMRE provides administration and 
enforcement grants to State regulatory programs annually. 30 U.S.C. 
1295(a). In addition, OSMRE conducts an annual oversight review of each 
State program, and, if necessary, OSMRE can evaluate the sufficiency of 
a State regulatory authority's funding, including the sufficiency of 
funding to carry out any action plans. For these reasons, OSMRE 
declines to add a definition of ``adequate funding'' to 30 CFR 733.5.
    OSMRE also disagrees with the need to include a definition for 
``public notification and involvement.'' Any definition of this term in 
30 CFR 733.5 would only be applicable to the sections of part 733; 
OSMRE's general definitions for its permanent regulatory program are 
found in 30 CFR 700.5 and 701.5 and neither contains a definition of 
public notification and involvement or a similar term. SMCRA contains 
many provisions related to public participation. See, e.g., W. Va. 
Highlands Conservancy, Inc. v. Norton, 343 F.3d at 242. SMCRA's public 
notification and participation procedures have long been understood in 
the context of their usage and as part of each State's approved 
regulatory program. Moreover, while OSMRE's regulations do not provide 
for public involvement in the development of an action plan, revised 30 
CFR 733.12(c) requires each State regulatory program issue, and 
benchmarks related to the resolution of that issue, to be tracked in 
each State's Annual Evaluation report, which is a public document 
published on OSMRE's website. Thus, the public will have access to any 
action plans that are developed.
    Comment: A commenter suggested that OSMRE add a definition in Sec.  
733.5 for ``Federal regulations.'' The suggested definition makes 
reference to several Federal environmental regulations with which a 
State regulatory authority must comply, including the Endangered 
Species Act of 1973, the Migratory Bird Treaty Act, the Clean Water 
Act, and the Archaeological Resources Protection Act. The commenter 
also suggests the addition of a definition in Sec.  733.5 for ``Listed 
species'' and refers to the meaning of the term under the Endangered 
Species Act of 1973. The commenter also requested that OSMRE define 
``Migratory bird'' and make reference to the meaning of the term under 
the Migratory Bird Treaty Act. The same commenter also suggested adding 
a sentence to the end of OSMRE's definition of ``State regulatory 
program issue.'' The added sentence would state that ``State regulatory 
program issue'' would include ``the potential failure to comply with or 
completely implement Federal regulations.''
    Response: These terms exist outside of SMCRA and are not part of 
this rulemaking effort. States must comply with all applicable Federal 
and State laws. For these reasons, OSMRE declines to include them in 
this rule.
    Comment: Similar to the comment above, the same commenter, 
representing an NGO, suggested that OSMRE list specific Federal 
regulations that could result in a State regulatory program issue and a 
subsequent action plan in the commenter's proposed definition of 
``Federal regulations.'' This commenter also suggested rule changes to 
reflect inclusion in the action plan of any mitigation measures ``that 
are necessary to return the affect[ed] area to pre-project 
conditions.'' The commenter also suggested that OSMRE include specific 
criteria to determine if the State regulatory program issue has been 
remedied or mitigated.
    Response: OSMRE declines to add a definition of ``Federal 
regulations'' to 30 CFR 733.5 because the language at revised 30 CFR 
733.12 is sufficiently broad to address whatever SMCRA program 
deficiency needs correction, and the regulation at final 30 CFR 
733.12(b)(1) requires the action plan to ``be written with specificity 
to identify the State regulatory program issue . . . .'' Thus, any 
SMCRA provision or implementing regulation that is the subject of the 
program issue will be identified at that time. As to the suggestion to 
require the return of the affected area to pre-project conditions, 
there is no provision in SMCRA that requires the return of a mine site 
to its pre-project condition. Instead, SMCRA requires permit applicants 
to reclaim the mine site as required by the Act and the State or 
Federal program. 30 U.S.C. 1260(b)(2). SMCRA further requires, for 
example, restoration of the land affected by mining ``to a condition 
capable of supporting the uses which it was capable of supporting prior 
to any mining, or higher or better uses of which there is a reasonable 
likelihood . . . .'' 30 U.S.C. 1265(b)(2) (emphasis added). The 
commenter's suggestion is directly contrary to these provisions of 
SMCRA; therefore, OSMRE rejects this comment.
    OSMRE agrees with the commenter that specific criteria should be 
included as part of each action plan so that OSMRE can evaluate whether 
the problem has been remedied. OSMRE, however, declines to adopt the 
specific language proposed by the commenter because, as proposed and 
finalized today, 30 CFR 733.12(b)(3)(iii) already includes language 
requiring actions plans to contain ``[e]xplicit criteria for 
establishing when complete resolution [of the State regulatory program 
issue] will be achieved.''
    Comment: A commenter suggested that OSMRE not adopt ``Early 
identification and corrective action to address State regulatory 
program issues'' at proposed Sec.  733.12 and instead incorporate 
OSMRE's suggested changes into existing OSMRE Directive REG-23. The 
commenters suggested varying degrees of positive and negative 
experiences with State-OSMRE action plans and their effectiveness.

[[Page 75174]]

    Response: OSMRE declines to make this change. The enhanced 30 CFR 
part 733 process that OSMRE is finalizing today is an important part of 
clarifying when OSMRE will use its authority under 30 U.S.C. 1271(a) 
and when it will use its authority under 30 U.S.C. 1271(b). Codifying 
this procedure in the Federal regulations versus an internal guidance 
document will give OSMRE a transparent mechanism that has gone through 
public review and comment to resolve State regulatory program issues. 
OSMRE acknowledges the commenter's varying experiences with action 
plans, but OSMRE is expecting to obtain positive results from this 
regulatory process as adopted in this final rule.
    Comment: A commenter made several specific suggestions to OSMRE's 
wording in proposed 30 CFR 733.12. These suggestions included wording 
related to actions taken by the Director to make some actions mandatory 
rather than discretionary and adding terms related to timing, such as 
``immediately'' and ``without delay.'' The commenter also suggested 
reducing the specific timeframe in which State regulatory program 
issues need to be resolved to 30 days calendar days as opposed to the 
180 days as proposed by OSMRE.
    Response: The purpose behind OSMRE's proposed new 30 CFR 733.12 is 
to give OSMRE a new tool, the development of an ``action plan,'' to use 
to ensure that systemic issues with State regulatory programs are 
addressed in a measured, but no less accountable, manner. This tool 
provides OSMRE with another means to better manage situations where a 
SMCRA problem may exist but does not require immediate action under the 
TDN process, though it needs to be addressed in a shorter time frame 
than the traditional 733 process. An action plan is the vehicle to use 
in these situations. Adoption of the commenter's suggested changes to 
proposed Sec.  733.12 would result in the loss of flexibility, which is 
the purpose of this section; thus, OSMRE is not making the suggested 
changes.
    Comment: A group of commenters requested that OSMRE revise proposed 
Sec.  733.12(a)(2) to ``fully reflect the flexibility in the Part 733 
process and avoid any inference that OSM[RE] can skip steps in the 
process.'' The commenters suggested that paragraph (a)(2) should be 
revised as follows (commenters' suggested language in italics):

    If the Director has reason to believe [as opposed to 
``concludes'' in the proposed rule] that the State regulatory 
authority is not effectively implementing, administering, enforcing, 
or maintaining all or a portion of its State regulatory program, the 
Director may initiate proceedings to substitute Federal enforcement 
of a State regulatory program or withdraw approval of a State 
regulatory program as provided in Part 733.

    Response: OSMRE declined to make the requested changes because 
final 30 CFR 733.12 will allow for the development of action plans to 
resolve State regulatory program issues; in contrast, the complete 30 
CFR part 733 process is aimed at larger programmatic issues. An action 
plan is designed to prompt action before the full process for 
substituting Federal enforcement or withdrawing a part or whole State 
program occurs as outlined in existing 30 CFR part 733 is necessary or 
initiated. To include the steps associated with existing Sec.  733.12 
would muddy the distinction between an action plan used to resolve 
regulatory program issues, which can be at the permit level, and a 
programmatic problem involving a deeper systemic issue.
    Comment: One commenter suggested revisions to proposed 30 CFR 
733.12(b)(3) and (4) to specify that OSMRE notify the public when OSMRE 
identifies a State regulatory program issue by posting all relevant 
documents on OSMRE's website. The commenter further requested that the 
regulation be revised to allow public review and comment on action 
plans before they are adopted. Finally, the commenter suggested 
revising the regulation to require OSMRE to post action plans and State 
regulatory authority Annual Evaluation reports on OSMRE's website.
    Response: As addressed above, the proposed regulation at 30 CFR 
733.12(c), which is adopted with modifications in this final rule, will 
provide that ``[a]ll identified State regulatory program issues and any 
associated action plan must be tracked and reported in the applicable 
State regulatory authority's Annual Evaluation report.'' OSMRE already 
posts Annual Evaluation reports on OSMRE's website. See https://www.odocs.osmre.gov/. OSMRE also intended to post any action plans 
developed between OSMRE and a State regulatory authority on OSMRE's 
website. Therefore, OSMRE is revising the final rule to provide that 
OSMRE will make all Annual Evaluation reports available on OSMRE's 
website and at the applicable OSMRE office. Thus, the public will be 
notified of each identified State regulatory program issue and 
associated action plan.
    While public participation is an essential and routine part of many 
aspects of OSMRE's regulatory program, public input in the development 
of an action plan would hamper OSMRE's ability to timely address 
identified State regulatory program issues. Even though OSMRE's process 
of developing an action plan does not include a public comment element, 
the inclusion of the term ``any source'' in revised 30 CFR 733.12(a)(1) 
makes it clear that a citizen, an organization, or any other source may 
provide information to OSMRE that could lead the Director to conclude 
that there may be a State regulatory program issue, which could result 
in an ``action plan.''
    Comment: A commenter recommended the deletion of proposed Sec.  
733.12(d) because it would allow OSMRE to take an oversight enforcement 
action before a violation exists. The commenter referred to the portion 
of the proposed rule that read, ``may imminently result in an on-the-
ground violation.'' Emphasis in original.
    Response: OSMRE declines to make this change. Under this final 
rule, OSMRE retains the right to issue a TDN to a State regulatory 
authority if a previously identified State regulatory program issue has 
not been adequately addressed and results in an actual or imminent 
violation of the approved State program. In the final rule, as 
discussed in the section-by-section analysis, OSMRE has removed the 
reference to ``on-the-ground violation'' and replaced it with ``a 
violation of the approved State program.'' OSMRE recognizes that these 
violations often manifest as an on-the-ground impact, but OSMRE also 
recognizes that these violations may manifest by other means. For 
example, a permittee's failure to submit required monitoring reports or 
submit annual certifications may be a site-specific violation of the 
approved State program. Specific to the comment, when OSMRE determines 
that a violation of the approved State program is imminent, it makes 
sense for OSMRE to take action to prevent actual problems. One of the 
primary purposes of SMCRA is to protect society and the environment 
from the harmful effects of surface coal mining operations, and OSMRE 
will be able to fulfill that purpose, in part, under Sec.  733.12(d), 
which is being adopted in this final rule.

I. Interrelationship of 30 CFR Part 733 and 30 CFR Part 842

    Despite the distinct processes outlined in 30 U.S.C. 1271(a) and 
(b) for handling site-specific violations and those violations of a 
programmatic nature, the reality of OSMRE enforcement is that, in 
practice, the nature of these violations may sometimes blur. This 
overlap may occur

[[Page 75175]]

as a result of circumstances, stakeholders conflating the processes, 
and complicated issues associated with coal mining. Thus, although a 
multi-state governmental organization commenter found OSMRE's inclusion 
of reference to one distinct process when discussing the other process 
to be ``perplexing,'' OSMRE's experience--and other comments received 
on this topic--demonstrate that the interrelationship must be 
considered.
    Comment: Similar to a comment discussed above in Section II., H., a 
group of commenters claimed that the use of the proposed 30 CFR part 
733 process to deal with any on-the-ground issue is inconsistent with 
SMCRA and will be more disruptive than using a TDN as directed by 30 
CFR part 842. This group of commenters also claimed that a TDN is 
needed when a State regulatory authority fails to act on a violation.
    Response: OSMRE agrees with the commenters that existing 30 CFR 
733.12, now redesignated as 30 CFR 733.13 in this final rule, and 
entitled, ``Procedures for substituting Federal enforcement of State 
programs or withdrawing approval of State programs,'' does not quickly 
effectuate change. However, OSMRE notes that this is a distinct process 
that must be implemented carefully and prudently. To bridge this gap, 
OSMRE proposed 30 CFR 733.12, which is being finalized today, as an 
early identification process for a prompter resolution of State 
regulatory program issues than under the existing regulations. This 
enhancement to the 30 CFR part 733 process serves to identify issues 
before the issues warrant the rare remedies of substitution of Federal 
enforcement or withdrawal of an approved State program. As previously 
discussed, the development and use of action plans in 30 CFR 733.12, as 
finalized, will resolve State regulatory program issues. In addition, 
even when OSMRE and a State regulatory authority are engaged in an 
action plan process, OSMRE will still take appropriate enforcement 
actions to address imminent harm situations and will issue TDNs for 
actual or imminent violations of an approved State program, such as 
those that have on-the-ground impacts. State regulatory program issues 
may also result in a direct Federal enforcement action under revised 
Sec.  733.12(d) if the State regulatory authority does not address 
issues as outlined in the action plan and there is an actual or 
imminent violation of the approved State program.
    Comment: OSMRE received a number of comments on what constitutes a 
``State regulatory program issue.'' A commenting group requested that 
OSMRE clearly express the delineation between a ``violation'' as used 
in section 521 of SMCRA and a ``State regulatory program issue'' as 
proposed in Sec.  733.5 and redesignated as Sec.  733.12. The group 
further suggested that OSMRE consider adding language to the definition 
of State regulatory program issue that states that State regulatory 
program issues are not ``violations'' in the context of section 
521(a)(1) of SMCRA.
    Response: OSMRE declines to make this requested delineation and 
associated change because OSMRE is afforded a degree of discretion to 
determine if something is a State regulatory program issue that should 
be addressed under the enhanced and finalized 30 CFR part 733 process 
or is site-specific with on-the-ground impacts that fall under the TDN 
process outlined in part 842. Moreover, finalized Sec.  733.12(d) 
continues to grant OSMRE the authority to take enforcement action to 
address an actual or imminent violation of an approved State program 
that often manifests as an on-the-ground impact. To do as the commenter 
suggests, i.e., the wholesale exclusion of State regulatory program 
issues from the TDN process, would create a regulatory loophole and be 
inconsistent with congressional intent. Further, as stated previously, 
what constitutes a violation is well understood by OSMRE, State 
regulatory authorities, and permittees. Thus, no change to the 
definition of State regulatory program issue is needed.
    Comment: A commenter suggested that OSMRE overtly state that State 
regulatory program issues are not the basis for a TDN.
    Response: While at least initially, a State regulatory program 
issue will not result in the issuance of a TDN, OSMRE is reserving the 
right to conduct Federal enforcement in accordance with final rule 
Sec.  733.12(d) in the event that a State regulatory authority does not 
adhere to an action plan or if a State regulatory program issue results 
in an actual or imminent violation of the approved State program that 
often manifests as an on-the-ground impact. Therefore, OSMRE declines 
to make the overt statement that the commenter requested.
    Comment: A commenter group requested that OSMRE reconsider defining 
``appropriate action'' for a ``State regulatory program issue'' under 
Sec.  842.11 as an ``appropriate action'' in response to a TDN under 30 
CFR part 842. The group noted that OSMRE spent considerable time in 
preamble text delineating OSMRE's authority for the TDN process under 
30 U.S.C. 1271(a) and 30 CFR part 842 and the 30 CFR part 733 process 
as required by 30 U.S.C. 1271(b). The group further suggested that 
State regulatory program issues are not to be the basis for a TDN; 
therefore, the inclusion of an action plan to address a State 
regulatory program issue, as an element of the TDN process, seemed to 
conflate the apparent distinction OSMRE was making between the TDN and 
30 CFR part 733 processes.
    Response: As OSMRE understands the comment and associated request, 
OSMRE declines to accept this change. If a State regulatory authority, 
operating under final Sec.  733.12, including development of an action 
plan, does not address the program issues identified in the action plan 
in the manner, and in accordance with the dates, outlined in the action 
plan, OSMRE may need to institute Federal enforcement to address the 
issue if there is an actual or imminent violation of the approved State 
program. The action plan process in final Sec.  733.12 is not a vehicle 
to avoid Federal enforcement; instead, it is a tool to address State 
regulatory program issues promptly.
    Comment: Several commenters challenged the use of the 30 CFR part 
733 process, as it existed in the pre-existing regulations and with the 
enhancements finalized today, to address State regulatory program 
issues that result from State permitting deficiencies. Various 
commenters asserted that OSMRE has used TDNs (under 30 CFR part 842) 
for years to address such State regulatory program issues. One 
commenter opined that an ``enormous loophole'' will be created by 
addressing all State regulatory program issues through the 30 CFR part 
733 process instead of through the TDN process.
    Response: OSMRE disagrees with these comments. OSMRE has 
acknowledged that, at various times, it has addressed State permitting 
issues through the TDN process. When it did so, OSMRE followed internal 
policies. Under this final rule, OSMRE is clarifying that it will not 
use the TDN process for alleged issues with a State regulatory 
authority's implementation of its approved State program, unless there 
is an actual or imminent violation of the approved State program. In 
OSMRE's experience, these violations often manifest in on-the-ground 
impacts. Instead, OSMRE will initially address such issues through the 
enhanced 30 CFR part 733 process. After all, if a permittee obtained a 
permit from the State regulatory authority on the basis of an accurate 
and complete application, the permittee has initially fulfilled the 
requirements of SMCRA and the State

[[Page 75176]]

regulatory program. See, e.g., Coal River Mountain Watch v. Republic 
Energy, LLC, No. 5:18-CV-01449, 2019 WL 3798219, at *8 (S.D.W. Va. Aug. 
12, 2019). However, as this final rule provides, even if OSMRE and the 
State regulatory authority are engaged in the State regulatory program 
issue or action plan processes, the State and OSMRE can still take 
appropriate enforcement actions if a violation of the approved State 
program has occurred or is imminent. By using action plans as an 
additional regulatory tool, the intent of sections 504 and 521 of SMCRA 
will be met without any damage to the environment or to the detriment 
of permittees. As described and contained in this final rule, action 
plans are regulatory instruments to accomplish specific objectives and 
have required timelines to resolve issues at hand. If a State 
regulatory program issue cannot be resolved through an action plan, the 
issue could result in a Federal substitution or takeover of a State 
regulatory program. The State regulatory program issue and action plan 
processes in this final rule, coupled with the TDN process, should 
ensure a more complete and timely enforcement of State regulatory 
programs.
    Comment: One commenter stated that violations emanating from 
``permit defects'' should be handled through the TDN process set forth 
in 30 CFR part 842 and not under the proposed early identification and 
corrective action process outlined in the enhancements to 30 CFR part 
733 or through the existing 30 CFR part 733 process. One commenter 
expressed concern that excluding the State regulatory authority from 
the TDN process undermines the balance between primacy and Federal 
oversight and the intent of Congress. Other commenters, pointing to 
past OSMRE decisions reviewing requests for Federal inspections related 
to State permitting decisions, requested that OSMRE clearly state that 
permit defects are totally excluded from the TDN process.
    Response: In general, OSMRE interprets the term ``permit defect'' 
to be a deficiency in a permit-related action taken by a State 
regulatory authority. The term does not appear in SMCRA and is not 
contained in the existing regulations. Rather, OSMRE has used the term 
in internal documents over the years, though OSMRE no longer uses the 
term in its existing Directive INE-35, entitled ``Ten-Day Notices'' and 
dated May 3, 2019. Section 521(a)(1) of SMCRA refers to ``reason to 
believe any person is in violation of any requirement of [SMCRA]. . . 
.'' As explained in the proposed rule, 85 FR at 28906-07, and in this 
final rule, ``any person,'' in the context of who can be in violation 
of SMCRA or a State regulatory program, does not include a State 
regulatory authority, unless it is acting as a permit holder. OSMRE 
acknowledges that the term ``any person'' also appears earlier in the 
same sentence of 30 U.S.C. 1271(a), but, in that context, SMCRA is 
referring to ``any person'' that provides information to the Secretary 
about possible violations; the term in that context is broader and can 
include a State regulatory authority. Under this final rule, OSMRE 
generally will not issue a TDN to a State regulatory authority for an 
identified State regulatory program issue. More specific to the context 
of this comment, under this final rule, a so-called ``permit defect'' 
will typically be handled as a State regulatory program issue, unless 
there is an actual or imminent violation of the approved State program. 
OSMRE will continue to take an appropriate direct enforcement action 
under the TDN or imminent harm processes, even if the impact stems from 
an underlying State regulatory program issue.
    Under this final rule, OSMRE will follow the statutory delineation 
of sections 521(a) (the site-specific TDN process at 30 CFR part 842) 
and 521(b) (the State regulatory program issue 30 CFR part 733 process) 
with respect to Federal enforcement. Although OSMRE has taken varying 
positions over the years, the best reading of SMCRA is that Congress 
intended the section 521(a) TDN process to be limited to violations at 
a specific site. In contrast, State regulatory program issues, which 
are more systemic in nature and could include alleged issues related to 
one or more permits issued by a State regulatory authority but do not 
result in site-specific violations of the approved State program, 
should be addressed under section 521(b) and the process outlined in 
finalized 30 CFR 733.12. In the proposed rule, OSMRE proposed to retain 
the ability to take Federal enforcement action if any issue being 
addressed as a State regulatory program issue, as outlined in 
redesignated 30 CFR 733.12, results in, or may imminently result in, 
on-the-ground violation. OSMRE is adopting this proposal in this final 
rule but has changed the terminology in Sec.  733.12(b) to read, ``in 
violation of the approved State program.'' OSMRE has made this 
modification in response to public comments and because this change 
best addresses identified issues that are not specific to an individual 
site but are more systemic in nature. This is important because OSMRE 
will still take appropriate enforcement action for actual or imminent 
violations of an approved State program that often manifest as on-the-
ground impacts even while OSMRE and a State regulatory authority are 
pursuing corrective actions for State regulatory program issues. A 
multi-state governmental organization representing the natural resource 
and related environmental protection interests of its 27 member States 
agreed that OSMRE can ``issue a TDN for an alleged permit defect that 
has resulted in an on-the-ground violation of a performance standard at 
a mine.'' Under Sec.  733.12 of this final rule, OSMRE will use any 
number of compliance strategies, including action plans when 
appropriate, to address regulatory program issues that result from 
State regulatory authority permitting actions while also preserving 
OSMRE's ability to take enforcement action in the event that a 
previously identified State regulatory program issue results in or may 
imminently result in a violation of the approved State program. As a 
commenter pointed out, the 30 CFR part 733 process has historically 
been used after back and forth discussions between OSMRE and a State 
regulatory authority to identify and institute any necessary changes to 
a State program. The last resort in this situation, which is unaffected 
by this final rule, is for Federal substitution or withdrawal of all or 
part of a State regulatory program under the existing 30 CFR part 733 
process. In OSMRE's view, the introduction of a definition for the 
phrase ``State regulatory program issue,'' combined with various 
compliance strategies, including action plans when appropriate, is an 
intermediary step between a Federal substitution or withdrawal of a 
State regulatory program under the part 733 process and the section 
521(a) TDN process. An action plan, with associated issue-specific time 
frames, serves as a beneficial and productive middle ground. It is 
important to keep the goals of regulatory oversight in mind: Address 
issues as they arise while causing correction and minimization of on-
the-ground impacts as soon as possible. The revisions to 30 CFR parts 
733 and 842 in this final rule achieve those goals by providing OSMRE 
with more tools to more appropriately, efficiently, and quickly address 
the range of regulatory issues that arise.
    Comment: A commenter opined that the citizen complaint process 
contained in 30 CFR part 842 should not be used to challenge state 
permitting issues under the guise of a ``violation of the Act or 
program.''

[[Page 75177]]

    Response: As has been previously stated, Congress intended public 
participation in the implementation and enforcement of SMCRA and 
specifically added section 521(a) to the statute to account for that 
participation. The language of 30 U.S.C. 1271(a)(1) is clear that the 
TDN process should be used for a non-imminent harm situation when ``the 
Secretary has reason to believe that any person is in violation of any 
requirement of this Act or any permit condition required by this Act. . 
. .'' However, if the alleged violation satisfies the definition of 
``State regulatory program issue,'' which could include issues related 
to State permitting, OSMRE will use the process set forth in 30 CFR 
733.12, as finalized, to address the issue. If it is not clear, at the 
time the citizen complaint is received, whether the alleged violation 
is actually a State regulatory program issue, OSMRE, if it has the 
requisite ``reason to believe,'' will still issue a TDN to a State 
regulatory authority. If, after review of the information provided in 
the State's response to the TDN, it turns out that the alleged 
violation is properly characterized as a State regulatory program 
issue, under revised 30 CFR 842.11(b)(1)(ii)(B)(3), the State will have 
taken appropriate action in response to the TDN by working with OSMRE 
to resolve the issue; thus, OSMRE will not conduct a Federal 
inspection. Of course, under finalized 30 CFR 733.12(d), if the State 
regulatory program issue manifests itself as a violation of the 
approved State program that often results in an on-the-ground impact, 
OSMRE can still take direct enforcement action.
    Comment: A commenting group suggested that OSMRE revise the 
proposed definition of ``State regulatory program issue'' to exclude 
all programmatic and permitting issues from the TDN process found in 30 
CFR part 842. The group also offered language at specific sections in 
proposed 30 CFR part 842 to effectuate this understanding. The 
suggested changes included adding a definition section to 30 CFR part 
842 that defines the following phrases and terms: ``State regulatory 
program issue'' and ``violation'' as used in 30 CFR parts 733 and 842. 
The commenter also suggested deleting the proposed revisions to the 
term ``appropriate action'' regarding joint inspections and to the term 
``good cause,'' which references 30 CFR part 733 State regulatory 
program issues. OSMRE infers from the comments that these suggested 
changes are presumably to indicate that State regulatory program issues 
are not appropriate subjects for a TDN.
    Response: OSMRE declines to make these changes because, as already 
stated in this preamble, under this final rule, OSMRE will not follow 
the process in 30 CFR 842.11 for State regulatory program issues, 
unless there is an actual or imminent violation of the approved State 
program. However, as noted above, sometimes OSMRE may initially issue a 
TDN for something that turns out to be a State regulatory program 
issue.

J. Specific Responses to Other Comments Received About the Proposed 
Rule

    Comment: One commenter questioned the validity of OSMRE's intention 
for clarifying the existing regulations. Specifically, this commenter 
alleged that despite OSMRE's rationale, the true rationale behind the 
proposed rulemaking is to ``reduce the workload of federal and state 
regulatory authorities due to lack of adequate funding to implement the 
Act as Congress intended it be done.''
    Response: The commenter provided no evidence that the State 
regulatory authorities have insufficient funding to carry out their 
obligations under SMCRA. For this and many other reasons stated 
throughout the proposed rule and this final rule preamble, OSMRE 
disagrees with the commenter. To the contrary, this rulemaking is 
intended to add transparency to OSMRE's oversight responsibilities; 
promote regulatory certainty for State regulatory authorities, 
regulated entities, and the public; enhance OSMRE's relationship with 
the State regulatory authorities; reduce redundancy in inspection and 
enforcement; and streamline the process for notifying State regulatory 
authorities of possible violations and other issues. With respect to 
the commenter's allegation that insufficient funding is provided to 
State regulatory authorities, OSMRE notes that Federal administration 
and enforcement grants are awarded to State regulatory authorities 
based, in part, on the anticipated workload, such as permitting and 
inspection, that is necessary for State regulatory authorities to 
administer and enforce their approved State programs under SMCRA. See 
30 CFR part 735 and OSMRE's Federal Assistance Manual, Chapter 5-200, 
The Application Process for a Regulatory Grant. In the event that OSMRE 
has reason to believe that a State regulatory authority is not 
effectively implementing, administering, maintaining, or enforcing any 
part of its approved program--including not sufficiently funding the 
approve State program, OSMRE may initiate procedures for substituting 
Federal enforcement of State programs or withdrawing approval of State 
programs as detailed in redesignated 30 CFR 733.13.
    Comment: A commenter expressed concern that the proposed change 
from ``shall'' to ``will'' in 30 CFR 842.11(b)(1) converts a previously 
mandatory duty into a discretionary duty.
    Response: As explained in the preamble to the proposed rule, the 
purpose of changing ``shall'' to ``will'' in 30 CFR 842.11(b)(1) was to 
clarify potential ambiguity with the word ``shall.'' 85 FR at 28907. As 
Justice Ginsburg explained in Gutierrez de Martinez v. Lamagna, 
``[t]hough `shall' generally means `must,' legal writers sometimes use, 
or misuse, `shall' to mean `should,' `will,' or even `may.' '' 515 U.S. 
417, 432-33, n.9 (1995). Even in an enforcement provision like this 
one, the use of the word ``shall'' does not necessarily give rise to a 
mandatory, nondiscretionary duty. See, e.g., Heckler v. Chaney, 470 
U.S. 821, 835 (1985); Sierra Club v. Jackson, 724 F. Supp. 2d 33, 38 
n.l (D.D.C. 2010) (``the mandatory meaning of `shall' has not been 
applied in cases involving administrative enforcement decisions''); 
Fed. R. Civ. P. 1, Advisory Committee Notes (2007) (``The restyled 
rules minimize the use of inherently ambiguous words. For example, the 
word ``shall'' can mean ``must,'' ``may,'' or something else, depending 
on context. The potential for confusion is exacerbated by the fact that 
``shall'' is no longer generally used in spoken or clearly written 
English.'').
    To guard against this potential ambiguity, OSMRE proposed to 
replace the word ``shall'' with the word ``will'' because ``will'' 
indicates an event (i.e., a Federal inspection) that is to occur in the 
future under specific circumstances (i.e., when the OSMRE authorized 
representative issues a TDN, and the State regulatory authority fails 
to respond with good cause or appropriate action). This word choice 
clarification was not intended to render the action at 30 CFR 
842.11(b)(1) as anything but mandatory. However, in consideration of 
the comment, OSMRE is adopting this suggestion to remove any ambiguity 
over the mandatory nature of the authorized representative's 
responsibility to issue a TDN when ``reason to believe'' is formulated. 
However, instead of replacing ``shall'' with ``will,'' as proposed, 
OSMRE will substitute the word ``shall'' with ``must'' in order to more 
affirmatively communicate the mandatory requirement. The Federal 
Register Document Drafting Handbook provides,

[[Page 75178]]

``use `must' instead of `shall' to impose a legal obligation to your 
reader.'' Additionally, the Federal Plain Language Guidelines--referred 
to in the Federal Plain Writing Act of 2010--also direct Federal 
agencies to use ``must'' not ``shall'' to indicate requirements.
    Comment: A commenting group suggested that OSMRE incorporate 
regulatory language that defines the term ``violation.'' The commenter 
asserted that, in the TDN context, a violation only occurs in the 
context of on-the-ground violations of a State regulatory program, 
rather than to infractions of SMCRA generally.
    Response: OSMRE disagrees that changes to the existing regulations 
are necessary. The term ``violation'' has been used for greater than 40 
years in SMCRA enforcement and has a common understanding that is not a 
subject of this rulemaking. However, as explained in the proposed rule, 
``[a] reasonable reading of section 521(a)(1) is that the referenced 
violations are those that permittees, and related entities or persons, 
commit in contravention of State regulatory programs. Therefore, within 
the context of section 521(a) of SMCRA and the TDN regulations, the 
proposed rule would clarify that OSMRE will not send TDNs to State 
regulatory authorities based on allegations or other information that 
indicates that a State regulatory authority may have taken an improper 
action under the State's regulatory program.'' 85 FR at 28907. OSMRE 
reasserts that position here. OSMRE did not propose to define the term 
violation and finds that such a definition is unnecessary.
    Further, OSMRE agrees that it will issue TDNs to State regulatory 
authorities only when it has reason to believe there is a violation of 
the applicable State program, but this result is already clear in the 
existing regulations. In other words, when OSMRE is determining whether 
it has reason to believe that there is a violation of SMCRA in the TDN 
context, it makes that determination under the requirements of the 
approved State program. This longstanding practice does not require 
regulatory clarification. Of course, State programs must consist of 
elements that are no less stringent than SMCRA and no less effective 
than its implementing regulations. See 30 CFR 732.15(a) (a State 
program must be ``in accordance with'' SMCRA and ``consistent with'' 
the Federal regulations) and 30 CFR 730.5 (defining ``in accordance 
with'' and ``consistent with''). As such, if there would be a violation 
under SMCRA and the Federal regulations, a violation of an approved 
State program is also likely. However, if OSMRE discovers that a State 
program is not as stringent as SMCRA, it will take appropriate action, 
such as requiring a State program amendment under 30 CFR 732.17. With 
regard to the commenter's reference to ``on-the-ground violations,'' 
that issue is discussed elsewhere in this final rule.
    Comment: A commenter requested that OSMRE modify existing Sec.  
842.11 to ensure deference is given to the State regulatory authority 
when OSMRE is evaluating alleged violations, especially those stemming 
from what the commenter characterizes as ``permit defects.'' While the 
commenter noted that the existing regulations contain an ``arbitrary 
and capricious'' standard, the commenter suggested that OSMRE and the 
Department's Office of Hearings and Appeals (OHA) often ignore or pay 
lip service to the standard. The commenter suggested that OSMRE amend 
30 CFR 842.11(b)(1)(ii)(B)(2) to make certain that deference is given 
to the State regulatory authority by adding a second sentence to read 
as follows: ``[t]he authorized representative will accord the State 
regulatory authority substantial deference in evaluating whether the 
response is arbitrary capricious or an abuse of discretion under the 
State program.''
    Response: As explained above, under this final rule, OSMRE will not 
address problems with a State-issued permit through the TDN process, 
unless there is an actual or imminent violation of the approved State 
program. OSMRE agrees with the commenter that OSMRE should afford 
substantial deference to State regulatory authorities during the TDN 
process. This is a practice that OSMRE has routinely followed in 
conformity with the various provisions of SMCRA relevant to this issue. 
Under the ``arbitrary, capricious, or an abuse of discretion'' standard 
in the existing regulations, which is not affected by this final rule, 
OSMRE already affords substantial deference to State regulatory 
authorities that the commenter seeks, which is consistent with SMCRA's 
cooperative federalism model. After all, in primacy States, the State 
is the primary SMCRA regulatory authority, and OSMRE's role is one of 
oversight. Because the existing regulations already recognize the 
States' significant role in enforcing SMCRA, and OSMRE is appropriately 
deferential to the States, no change to the regulations is necessary to 
accomplish the commenter's goal. OSMRE also notes that, contrary to the 
commenter's assertion, neither OHA nor OSMRE is free to ignore or 
merely pay lip service to requirements in duly promulgated regulations. 
Likewise, OSMRE acknowledges that it must follow applicable provisions 
of SMCRA and relevant administrative and judicial case law. OSMRE 
already recognizes and applies the requisite deference owed to State 
regulatory authorities during the TDN process, and the TDN regulations 
and OSMRE's practice are fully in accord with SMCRA and court 
decisions.
    Comment: A commenter questioned why OSMRE proposed changes to four 
of the five examples of what can constitute ``good cause'' at 30 CFR 
842.11(b)(1)(ii)(B)(4) and made no changes to one of the five elements. 
The commenter also questioned OSMRE's proposal to include the term 
``demonstrates'' in paragraphs (b)(1)(iii) and (iv) because it did not 
appear to change the meaning of the provisions.
    Response: OSMRE has found it difficult to substantiate State 
regulatory authority's jurisdictional claims under existing paragraph 
(b)(1)(iii) and claims of preclusion to act under existing paragraph 
(b)(1)(iv). OSMRE does not intend to change the meaning of these 
provisions or its interpretation of what constitutes good cause for not 
taking an action under these subparagraphs. OSMRE added ``demonstrate'' 
to these subparagraphs of Sec.  842.11(b)(1)(ii)(B)(4) to ask State 
regulatory authorities to provide OSMRE with a measure of certainty for 
their claims of good cause for not taking an action to correct a 
violation.
    Comment: One commenter indicated general support for the proposed 
clarifications of ``good cause'' as set forth in 30 CFR 
842.11(b)(1)(ii)(B)(4). However, the commenter recommended that the 
provisions related to good cause could be made more effective with the 
addition of language requiring the State regulatory authority to 
demonstrate it has ``dedicated all resources necessary to complete the 
investigation as soon as possible.''
    Response: OSMRE understands that the commenter is requesting a 
defined time frame for the State regulatory authority to complete an 
investigation into a possible violation as outlined in 30 CFR 
842.11(b)(1)(ii)(B)(4)(ii) and also is requesting that the State 
regulatory authority make an affirmative showing that all resources 
necessary are used to complete the investigation. OSMRE does not accept 
the suggestion made by the commenter as it would place general, 
unreasonable expectations on the State regulatory authority to complete 
often complicated and fact-specific investigations. To be clear, the 
existing regulations require that when a State regulatory authority 
requires

[[Page 75179]]

additional time to analyze the allegations in a TDN, this must be 
performed in a ``reasonable and specified additional time.'' The 
proposed rule, as finalized today, also contains this limit on a State 
regulatory authority's investigation time frame and takes a further 
step to ensure expeditious resolution of possible violations. In an 
effort to express the urgency of promptly resolving alleged violations, 
the final rule grants the OSMRE authorized representative discretion to 
``determine how long the State regulatory authority should reasonably 
be given to complete its investigation . . . and [the authorized 
representative] will communicate to the State regulatory authority the 
date by which the investigation must be completed.'' At the conclusion 
of the specified time, the OSMRE authorized representative will re-
evaluate the State regulatory authority's response. This reflects an 
appropriate balance of the State regulatory authority's knowledge of 
specific issues, the need to thoroughly gather information necessary to 
evaluate a possible violation, and the prompt resolution of possible 
violations. Furthermore, it does not place unreasonable expectations on 
State regulatory authorities to dedicate ``all resources'' to one 
issue.
    Comment: One commenter suggested revisions to the ``good cause'' 
provisions in proposed Sec.  842.11(b)(1)(ii)(B)(4)(iv) to address what 
the commenter has characterized as a shortcoming in the existing and 
proposed language that was identified during recent coal company 
bankruptcy proceedings. According to the commenter, during bankruptcy 
proceedings, evidence was discovered of collusion between State 
officials and coal companies that were self-bonded. The commenter 
alleged that either through this alleged collusion, or by direct action 
of the State officials, judicial action was taken to shield these 
companies from complying with the requirements of 30 CFR 800.16(e) 
(General terms and conditions of bond) and 30 CFR 800.23(g) (Self-
bonding). The commenter surmised that these alleged actions could be 
prevented by revising Sec.  842.11(b)(1)(ii)(B)(4)(iv) to include the 
requirement that the State regulatory authority ``demonstrate that no 
state official has coordinated with the mining company and or acted 
independently to secure an administrative review body or court of 
competent jurisdiction to preclude the State regulatory authority from 
taking action on the violation.''
    Response: OSMRE declines to accept this suggestion because this 
proposed revision to the good cause requirements of 30 CFR part 842 is 
outside the scope of this rulemaking as OSMRE did not propose to 
substantively change the requirement in Sec.  
842.11(b)(1)(ii)(B)(4)(iv). OSMRE notes that if OSMRE discovers, at any 
time, that a State regulatory authority is failing to adequately 
implement, administer, maintain, or enforce a part or all of a State 
program, including enforcing the general bonding and self-bonding 
requirements established in 30 U.S.C. 1259 and 30 CFR part 800, OSMRE 
may initiate the existing 30 CFR part 733 process in accordance with 30 
U.S.C. 1271(b).
    Comment: A multi-state governmental organization that characterizes 
itself as supporting the natural resource and related environmental 
protection and mine safety and health interests of its 27 member States 
suggested that OSMRE develop a more thorough discussion of why the 
proposed regulations at 30 CFR parts 733 and 842 represent OSMRE's 
interpretation of SMCRA with respect to the procedures for substituting 
Federal enforcement of State programs or withdrawing approval of State 
programs and the TDN process.
    Response: OSMRE has already discussed the clarifying changes to 30 
CFR parts 733 and 842 in the preamble to the proposed rule (85 FR 
28904). These two rule sections have also been the subject of several 
previous rulemakings and associated Federal Register notices. See, 
e.g., 44 FR 14902 (March 13, 1979), 47 FR 35620 (Aug. 16, 1982), 52 FR 
34050 (Sept. 9, 1987), and 53 FR 26728 (July 14, 1988). Additionally, 
OSMRE has expanded upon the rationale for its clarifying changes, 
above.
    Comment: A coal industry group comprised of several companies in an 
Appalachian Basin-based coal State offered its support for OSMRE's 
proposed clarification that OSMRE will not send TDNs to State 
regulatory authorities based on allegations that the State regulatory 
authority itself has acted improperly under the approved State program.
    Response: As discussed briefly above, OSMRE agrees with the 
commenter's observations. Specifically, the commenter accurately 
recognizes that within the context of section 521(a)(1) of SMCRA, a 
State regulatory authority should not be considered ``any person'' who 
may be ``in violation of any requirement of this Act.'' 30 U.S.C. 
1271(a)(1). As discussed in the proposed rule, but not commented upon, 
in this context, ``any person'' does not include OSMRE, State 
regulatory authorities, or employees or agents thereof, unless they are 
acting as permit holders. To be clear, OSMRE will not issue a TDN to a 
State regulatory authority for an alleged violation by the State 
regulatory authority, unless the State regulatory authority is acting 
as a permit holder because it is operating a surface coal mining 
operation or the State regulatory authority is standing in the shoes of 
the permittee due to bond forfeiture or any other unforeseen reason. 
This interpretation is consistent with the plain language of 30 U.S.C. 
1271(a) that differentiates between ``any person'' providing 
information and ``any person [that] is in violation of any requirement 
of this Act. . . .'' However, OSMRE cautions that this interpretation 
does nothing to diminish OSMRE's authority to act if OSMRE becomes 
aware that there is a State regulatory program issue. Specifically, if 
OSMRE becomes aware that there is a State regulatory program issue that 
undermines a State regulatory authority's effective administration, 
maintenance, implementation, or enforcement of its State regulatory 
program, even with respect to a single operation, OSMRE may address the 
issue programmatically under the enhanced 30 CFR part 733 that is being 
finalized in this rulemaking while also taking enforcement action as 
prescribed by 30 U.S.C. 1271(a)(1) when there is a violation of the 
approved State program.
    Comment: A citizen commenter suggested that OSMRE should define the 
terms ``readily available information'' and ``effective 
documentation.''
    Response: Definitions for these two terms are unnecessary as the 
terms have generally accepted definitions and no specialized technical 
meaning in this rule. For example, ``readily'' is defined as ``without 
hesitating; without much difficulty.'' Readily, Merriam Webster Online 
Dictionary, available at merriam-webster.com/dictionary/readily (last 
accessed August 4, 2020). Moreover, as OSMRE explained in the preamble 
to the proposed rule, OSMRE considers ``any information that is 
accessible without unreasonable delay'' to be ``readily available 
information.'' 85 FR at 28907. Furthermore, OSMRE's authorized 
representative needs the flexibility to use his or her best 
professional judgment to determine what information is readily 
available based on the specific facts of each situation.
    Similarly, it is also not necessary for OSMRE to define ``effective 
documentation'' as it is used in Sec.  842.11(b)(2) to describe the 
type of information referenced in 43 U.S.C. 1271(a)(1) that a 
complainant should submit to OSMRE to show a possible violation because 
determining what

[[Page 75180]]

constitutes ``simple and effective documentation'' will be a fact-
specific consideration that OSMRE will take into account in formulating 
reason to believe on a case-by-case basis. Congress, when enacting 
SMCRA, recognized that OSMRE's authorized representative will consider 
``a snapshot of an operation in violation or other simple and effective 
documentation of a violation'' in order to formulate reason to believe 
before issuing a TDN. H.R. Rep. No. 95-128, at 129 (April 22, 1977) 
(emphasis added). As used in the final rule at 30 CFR 842.11(b)(2), 
OSMRE adopts the language proffered by Congress; thus, OSMRE's 
authorized representative will be assessing both whether the 
complainant has submitted ``simple and effective documentation'' and 
whether ``facts that are otherwise known to the authorized 
representative'' constitute simple and effective documentation before 
formulating whether there is reason to believe a violation exists. 
However, that simple and effective documentation can also come from any 
other readily available source, in addition to the complainant. This 
may include, for example, information in OSMRE's files, from the public 
domain, provided by a State regulatory authority, or in a citizen 
complaint. Depending on the alleged violation, simple and effective 
documentation could also be a photograph of the alleged violation, 
boundary identifiers, water monitoring reports, or any other 
information readily available to OSMRE's authorized representative.
    Comment: A citizen commenter stated that the proposed changes to 
Sec.  842.11(b)(2) coupled with the ``new proposed `reason to believe' 
standard'' will make it more likely that legitimate complaints will be 
rejected because the complaint may not include ``simple and effective 
documentation.'' Further, the commenter reasoned that the term ``simple 
and effective documentation'' is a new term that is undefined and that 
will place an unreasonable burden on citizens seeking to file a citizen 
complaint.
    Response: OSMRE disagrees with this comment and notes that Sec.  
842.11(b)(2) states the authorized representative will be able to 
formulate reason to believe ``if the facts that a complainant alleges, 
or facts that are otherwise known to the authorized representative, 
constitute simple and effective documentation of the alleged violation, 
condition, or practice.'' (Emphasis added). The commenter has missed 
the portion of this provision that allows the authorized representative 
to rely on facts that are otherwise known to the authorized 
representative that may constitute simple and effective documentation, 
in addition to the facts that the complainant submits. Moreover, as 
OSMRE noted in response to a previous comment, the concept of ``simple 
and effective documentation'' was first introduced in 1977 when SMCRA 
was being drafted by Congress. This phrase was used to describe the 
type of information that could be used to document a possible 
violation. OSMRE is not imposing a new requirement or a burden on 
citizens when filing a citizen complaint and views this standard as a 
low bar describing the nature of documentation that may be used to show 
that a violation has taken or is taking place. In addition, OSMRE has 
clarified in this final rule that it will consider any ``simple and 
effective documentation''--including readily available information from 
the State regulatory authority or any other source--when formulating 
reason to believe.
    Comment: OSMRE received several comments suggesting that OSMRE does 
not have statutory authority to issue a notice of violation (NOV) in a 
primacy State due to the construction and relationship between sections 
504(b) and 521(b) of SMCRA. One of these commenters further suggested 
that once a State program is approved, and the State earns primacy, the 
approved State program becomes the operative law; therefore, Federal 
actions against a State permittee amount to a Federal takeover of the 
approved State program. Another one of these commenters echoed the same 
sentiment and added that Federal oversight in a primacy State created 
an unfair playing field relative to States that have not achieved 
primacy and therefore have only Federal enforcement. A commenter 
further suggested that OSMRE repeal the regulation authorizing NOVs in 
primacy states (30 CFR 843.12) and initiate a rulemaking to do so.
    Response: The issue of OSMRE's statutory authority to issue NOVs is 
well-settled, and nothing in OSMRE's proposed rule suggested that OSMRE 
was reconsidering whether it has authority to issue NOVs in primacy 
States. See 48 FR 9199 (Mar. 3, 1983) (``[u]pon examination of the 
issue, the Department has concluded that the regulation contained at 30 
CFR 843.12(a)(2) was properly and lawfully promulgated; therefore there 
is no need to reconsider the issue.''); see also 44 FR 14902. Over 
thirty years ago, OSMRE considered a rulemaking petition, which sought 
the repeal of all of the regulations ``authorizing Federal notices of 
violation in States with approved regulatory programs . . . .'' 52 FR 
at 21598. OSMRE denied this petition. 52 FR at 21601 (``After careful 
consideration of the Act, the legislative history, and public comments. 
. . , OSMRE determined that it has the authority to issue Federal NOV's 
in primacy States.''); see also Nat'l Min. Ass'n v. U.S. Dep't of 
Interior, 70 F.3d 1345, 1353 (D.C. Cir. 1995) (upholding OSMRE's 
rulemaking petition denial). Given OSMRE's longstanding interpretation 
of its authority and the lack of anything in the proposed rule that 
would indicate a change to this position, OSMRE considers this comment 
to be outside the scope of this rulemaking, and OSMRE is not adopting 
the suggestions made by these commenters.
    Comment: One commenter suggested that OSMRE repeal 30 CFR 842.15(d) 
pertaining to formal appeals to OHA of the Director's informal review 
of an inspector's decision in response to a request for a Federal 
inspection. The commenter opined that SMCRA authorizes informal review 
of an authorized representative's decision to not inspect or not take 
enforcement action, but SMCRA does not authorize formal appeals, as the 
existing OSMRE regulations authorize. The commenter further stated that 
these ``formal'' appeals of OSMRE decisions not to inspect or enforce 
often languish for years while being resolved through the 
administrative litigation process of the OHA and the appellate 
administrative board, the Interior Board of Land and Appeals. In 
support of this proposed revision, the commenter cited efficiency and 
points out that long resolution times unnecessarily prolong uncertainty 
for operators and State regulatory authorities.
    Response: OSMRE did not propose any revisions to 30 CFR 842.15 in 
response to this comment. OSMRE considers this comment to be outside 
the scope of this rulemaking and is not making any changes to the final 
rule as a result. Changes to the administrative review process for 
informal review decisions were neither proposed by OSMRE in the 
proposed rule nor would be a logical outgrowth of the current 
rulemaking effort. Therefore, OSMRE will not be addressing this comment 
or including the provisions proposed by the commenter in this final 
rule.
    Comment: One individual commenter, representing the interests of a 
citizens' group, cites data from the U.S. Energy Information 
Administration (EIA) that predicts a 25 percent decline in domestic 
coal production from 2019 through 2020 and the ``financial demise of 
the coal industry'' as a rationale for why OSMRE should maintain

[[Page 75181]]

appropriate regulations to safeguard and protect the environment from 
``careless mining endeavors.''
    Response: OSMRE agrees that it should maintain appropriate 
regulations to safeguard the environment and asserts that this final 
rule and the other Federal regulations accomplish that goal. 
Fundamentally, this final rule will enhance OSMRE's and the State 
regulatory authorities' ability to adequately administer and enforce 
SMCRA. To clarify, EIA estimates that U.S. coal consumption will 
decrease by 26 percent in 2020 and increase by 20 percent in 2021. 
Further, EIA estimates that coal production in 2020 will decrease by 29 
percent from 2019 levels. See U.S. Energy Information Administration, 
``Short-Term Energy Outlook,'' available at https://www.eia.gov/outlooks/steo/(last accessed August 10, 2020). OSMRE's obligations 
under SMCRA are informed by its purposes outlined at 30 U.S.C. 1202. 
SMCRA's purposes are not dependent upon the amount of coal consumption 
or production. Regardless of the amount of consumption or production of 
coal, OSMRE's oversight and enforcement responsibilities remain the 
same. Therefore, the estimated annual variance in coal production does 
not impact OSMRE's statutory obligations, which include, most relevant 
to this final rule, ``administer[ing] the programs for controlling 
surface coal mining operations. . .'' and ``cooperat[ing] with other 
Federal agencies and State regulatory authorities to minimize 
duplication of inspections, enforcement, and administration of 
[SMCRA].'' See 30 U.S.C. 1211(c)(1) and (12). This final rule will 
enhance administration and enforcement of SMCRA and State regulatory 
programs and also enhance cooperation between OSMRE and the State 
regulatory authorities.
    Further, the commenter's recognition of decreased coal production, 
at least in the short term, supports the need for this rulemaking. As 
coal production decreases, coal mine operators may revise their mine 
plans or permanently cease operations and either commence final 
reclamation or, in the event of financial insolvency, forfeit their 
reclamation bond. In such cases, State regulatory authority workloads 
may initially increase due to higher volumes of permit revisions, 
inspection and enforcement activities, bond releases, and potential 
actions surrounding permit revocation and bond forfeiture. Due to the 
structure of the SMCRA program, the State regulatory authority will 
have permitting and inspection obligations on every mine site for a 
minimum of five to ten years after coal production ceases. Only after 
final bond release may a permit be terminated and the State regulatory 
authority relieved of its responsibilities. Federal administration and 
enforcement grants awarded by OSMRE to State regulatory authorities are 
based, in part, on the anticipated workload, such as permitting and 
inspection, that is necessary for State regulatory authorities to 
administer and enforce their approved State programs under SMCRA. See 
30 CFR part 735 and OSMRE's Federal Assistance Manual, Chapter 5-200, 
The Application Process for a Regulatory Grant. As production 
decreases, permitting and associated costs may decrease over time; 
thus, State regulatory authorities may not receive the same level of 
funding as they do currently. This highlights the need to be more 
efficient with the resources that are available. This final rule should 
help to increase efficiency in inspections and enforcement.
    Comment: Several commenters questioned the authority of Casey 
Hammond, serving in his capacity as Principal Deputy Assistant 
Secretary, to issue the proposed rulemaking.
    Response: Mr. Hammond acted within the authority of the Assistant 
Secretary for Land and Minerals Management (ASLM) authority that was 
properly delegated to him when signing the proposed rulemaking. 
Reorganization Plan No. 3 of 1950 provides that ``all functions of all 
other officers of the Department of the Interior . . . .'' are 
``transferred to the Secretary of the Interior. . . .'' 64 Stat. 1262 
at section 1. The Secretary may then ``make such provisions as he shall 
deem appropriate authorizing the performance by any other officer, or 
by any agency or employee, of the Department of the Interior of any 
function of the Secretary, including any function transferred to the 
Secretary by the provisions of this reorganization plan.'' Id. at 
section 2. Indeed, Congress codified and affirmed the Secretary's 
ability to transfer ``all'' functions to ``any'' officer or employee of 
the Department in 1984 via Public Law 98-532.
    SMCRA authorizes the Secretary to promulgate rules and regulations 
necessary to carry out the Act. See 30 U.S.C. 1211(c)(2). The Secretary 
has delegated this responsibility to the ASLM. 209 Departmental Manual 
(DM) 7.1.A. The Secretary delegated ``all functions, duties, and 
responsibilities'' of the ASLM to Mr. Hammond via Secretary's Order 
3345 Amendment No. 32 on May 5, 2020, two weeks before he signed the 
proposed rulemaking. This delegation of authority excludes functions 
and duties that are required by statute or regulation to be performed 
only by the ASLM. The signing of the proposed rulemaking is not such an 
exclusive function or duty. Although the Secretary and OSMRE Director 
also have such authority (216 DM 1.1.B), that does not divest the ASLM 
from his properly delegated authority. 200 DM 1.9. Therefore, Mr. 
Hammond properly exercised the delegated authority of the Secretary in 
signing this proposed rulemaking. Mr. Hammond continues to exercise the 
delegable, non-exclusive functions, duties, and responsibilities of the 
ASLM pursuant to a Succession Order signed by the Secretary (latest 
version signed June 3, 2020).
    Comment: One citizens' group representing many national citizen 
organizations and ``thousands of individuals'' across the country 
contends that the proposed rule required an Environmental Impact 
Statement (EIS) or Environmental Assessment (EA) to comply with the 
National Environmental Policy Act (NEPA). 42 U.S.C. 4321 et seq. In 
support of this assertion, the citizens' group states that the proposed 
rule would result in unabated violations due to an alleged delay in TDN 
issuance.
    Response: We disagree with the premise of this comment. This final 
rule is designed to allow a State regulatory authority and OSMRE the 
ability to more efficiently address alleged violations at surface coal 
mining operations. As stated in the proposed rule, the final rule will 
allow a State regulatory authority to investigate an alleged violation 
before needing to divert resources away to respond to a TDN. 85 FR at 
28907. As a result, any violations should be abated more quickly and 
more efficiently than under the existing rules.
    Moreover, as discussed further in ``Procedural Determinations'' 
below, OSMRE has re-evaluated its compliance with NEPA after reviewing 
the comments received on the proposed rule. OSMRE still finds that this 
rulemaking falls within the Department's categorical exclusion at 43 
CFR 46.210(i) because the clarifications of 30 CFR part 842 and 
enhancement of 30 CFR part 733 are of an administrative and procedural 
nature. Fundamentally, this final rule clarifies aspects of the 
procedures that OSMRE uses to evaluate citizen complaints to determine 
if it should issue a TDN and adds procedures for State regulatory 
authorities to take corrective action of State regulatory program 
issues. However, as explained above in response to other comments, none 
of these clarifications or enhancements

[[Page 75182]]

materially alters OSMRE's enforcement of SMCRA in primacy states. 
Therefore, this rulemaking falls within this categorical exclusion. In 
addition, no extraordinary circumstances exist that would prevent OSMRE 
from using the categorical exclusion. 43 CFR 46.215.
    It is true that the last time OSMRE proposed to substantively 
revise the TDN regulations, it did not use a categorical exclusion but 
instead prepared an environmental assessment. See 1987 Environmental 
Assessment entitled, U.S. Department of the Interior, Office of Surface 
Mining Reclamation and Enforcement, Environmental Assessment for 
Amending Rules in 30 CFR 842.11 and 843.12 on Evaluation of State 
Responses to Ten-Day-Notices. Similar to OSMRE's final rule today, the 
1988 final rule was aimed at improving cooperative federalism. 
Specifically, in the 1987 environmental assessment, OSMRE found, ``[t]o 
the extent that the revised procedures foster a better working 
relationship between OSMRE and the States in implementing SMCRA, the 
environmental consequences of the proposed action should be positive.'' 
Moreover, in the 1987 environmental assessment, OSMRE concluded that no 
significant environmental impacts were associated with the action. Id. 
This past analysis supports OSMRE's determination that no extraordinary 
circumstances apply that would preclude OSMRE's use of an applicable 
categorial exclusion. It also is consistent with the Department's goals 
of streamlining its NEPA reviews. See, e.g., Secretarial Order No. 3355 
(Aug. 31, 2017); see also Council for Environmental Quality, 
Memorandum, Establishing, Applying, and Revising Categorial Exclusions 
under the National Environmental Policy Act (Nov. 23, 2010), at 2-3 
(``[C]ategorical exclusions provide an efficient tool to complete the 
NEPA environmental review process for proposals that normally do not 
require more resource-intensive EAs or EISs. The use of categorial 
exclusions can reduce paperwork and delay, so that EAs or EISs are 
targeted toward proposed actions that truly have the potential to cause 
significant environmental effects.'').

V. Discussion of the Final Rule and Section-by-Section Analysis

    This part of the preamble provides a section-by-section analysis of 
the regulations promulgated in this final rule.

Part 733--Early Identification of Corrective Action, Maintenance of 
State Programs, Procedures for Substituting Federal Enforcement of 
State Programs, and Withdrawing Approval of State Programs

    OSMRE proposed to revise the title for this part and to redesignate 
certain sections of the existing part to accommodate the addition of a 
definitional section at 30 CFR 733.5 and OSMRE's proposed enhancement 
to the 30 CFR part 733 process--a new proposed Sec.  733.12, entitled, 
``Early identification and corrective action to address State 
regulatory program issues.''
    The existing regulations at 30 CFR part 733 establish requirements 
for the maintenance of State programs and the procedures for 
substituting Federal enforcement of State programs and withdrawing 
approval of State programs. Citing OSMRE's 40-plus years of 
implementing and overseeing SMCRA and State regulatory programs, OSMRE 
proposed to add an enhancement to this part--the codification of an 
existing OSMRE internal policy aimed at early identification of and 
corrective action to address State regulatory program issues. When 
formulating the proposed rule, OSMRE reasoned that if issues remain 
unaddressed, these issues may result in a State regulatory authority's 
ineffective implementation, administration, enforcement, or maintenance 
of its State regulatory program. To prevent this from occurring and to 
encourage a more complete and more efficient implementation of SMCRA, 
OSMRE proposed to enhance existing 30 CFR part 733 by adding Sec.  
733.5 that would define the terms ``action plan'' and ``State 
regulatory program issue.'' Additionally, OSMRE proposed to redesignate 
existing Sec.  733.12 as Sec.  733.13, redesignate existing Sec.  
733.13 as Sec.  733.14, and add a new Sec.  733.12 to address how early 
identification of and corrective action for State regulatory program 
issues can be achieved. Further, in the sections proposed to be added 
or revised throughout 30 CFR part 733, OSMRE proposed to add the term 
``regulatory'' between the terms ``State'' and ``program'' for 
consistency purposes. As discussed in the specific sections below, all 
of these changes are not substantive and are made for the purpose of 
clarity to differentiate between a regulatory program administered by 
OSMRE and a State regulatory program that is administered by a State 
that has achieved primacy after approval by OSMRE.
    As discussed above in response to specific comments, OSMRE 
considers the enhancements to the existing regulations at 30 CFR part 
733 to be beneficial for early identification, evaluation, and 
resolution of potential issues that may impact a State regulatory 
authority's ability to effectively implement, administer, enforce, or 
maintain its State regulatory program. Further, OSMRE finds that these 
mechanisms should avoid unnecessary substitution of Federal enforcement 
or withdrawal of State regulatory programs and minimize the number of 
on-the-ground impacts. Therefore, OSMRE is adopting, with minor 
modifications, based upon comments received from the public and further 
OSMRE analysis, the proposal to enhance 30 CFR part 733.

Final Rule Sec.  733.5 Definitions

    OSMRE proposed to add a definition section to 30 CFR part 733 that 
would define the terms ``action plan'' and ``State regulatory program 
issue.'' In short, under the proposed definition, the term ``action 
plan'' would mean ``a detailed schedule OSMRE prepares to identify 
specific requirements a regulatory authority must achieve in a timely 
manner to resolve State regulatory program issues identified during 
oversight of State regulatory programs.'' OSMRE proposed to define the 
term ``State regulatory program issue'' to mean an issue OSMRE 
identifies during oversight of a State or Tribal regulatory program 
that could result in a State regulatory authority not effectively 
implementing, administering, enforcing, or maintaining all or any 
portion of its State regulatory program, including instances when a 
State regulatory authority has not adopted and implemented program 
amendments that are required under 30 CFR 732.17 and 30 CFR subchapter 
T, and issues related to the requirement in section 510(b) of the Act 
that a State regulatory authority must not approve a permit or revision 
to a permit unless the State regulatory authority finds that the 
application is accurate and complete and that the application is in 
compliance with all requirements of the Act and the State regulatory 
program.
    As discussed above in OSMRE's responses to public comments, OSMRE 
received many comments on the enhanced 30 CFR part 733 process in 
general, including comments on the proposed definitions. As OSMRE 
explained in response to specific comments, the proposed definitions 
are appropriate and it is adopting 30 CFR 733.5 as proposed, with one 
minor exception. In the definition of ``action

[[Page 75183]]

plan,'' OSMRE is inserting the word ``State'' between ``a'' and 
``regulatory authority'' to be consistent with the remainder of the 
Part and to differentiate between situations when OSMRE is the 
regulatory authority. Thus, the final definition will read, ``[a]ction 
plan means a detailed schedule OSMRE prepares to identify specific 
requirements a State regulatory authority must achieve in a timely 
manner to resolve State regulatory program issues identified during 
oversight of State regulatory programs.''
    OSMRE most frequently identifies issues that it will now classify 
as State regulatory program issues during oversight of a State 
regulatory program, but OSMRE may also be alerted to a State regulatory 
program issue from a citizen complaint or a request for a Federal 
inspection. State regulatory program issues are those that may result 
in a State regulatory authority not adhering to its approved State 
regulatory program. Other examples of a State regulatory program issue 
include when a State regulatory authority does not adopt and implement 
program amendments that are required under 30 CFR 732.17 and 30 CFR 
subchapter T. The proposed definition of State regulatory program 
issue, which OSMRE is finalizing in this rule, includes issues related 
to the requirement in SMCRA section 510(b), 30 U.S.C. 1260(b), that a 
State regulatory authority must not approve a permit or permit 
revision, unless the State regulatory authority finds that the 
application is accurate and complete and is in compliance with all of 
SMCRA's requirements and those of the State regulatory program.
    To provide greater context in which the term ``State regulatory 
program issue'' is used, the next two paragraphs will describe how the 
State regulatory program issues covered by 30 CFR part 733 sometimes 
overlap with the TDN and Federal inspection process provided for in 30 
CFR part 842. As discussed below in relation to finalized 30 CFR part 
842, the TDN and Federal inspection process in section 521(a) of SMCRA 
and the State regulatory program enforcement provisions in section 
521(b) of SMCRA, along with the existing implementing regulations, 
differentiate between issues related to a State regulatory authority's 
failure to implement, administer, maintain, and enforce all or a part 
of a State regulatory program and possible violations that could lead 
to a TDN or Federal inspection. Most notably, the State regulatory 
program enforcement provisions of section 521(b) of SMCRA generally 
address systemic programmatic problems with a State regulatory program, 
not specific violations exclusive to an individual operation or permit 
as detailed in section 521(a) of SMCRA. However, citizens sometimes 
identify State regulatory program issues in citizen complaints under 
section 521(a) of SMCRA and 30 CFR part 842 that may result in a TDN. 
OSMRE may also become aware of a State regulatory program issue while 
overseeing enforcement of specific operations or permits.
    SMCRA and the existing regulations provide a remedy for systemic 
programmatic issues at 30 CFR part 733 by identifying procedures for 
substituting Federal enforcement of State regulatory programs or 
withdrawing approval of State regulatory programs. The proposed 
addition of early identification and corrective action plans to address 
State regulatory program issues that OSMRE is adopting under this final 
rule will enhance OSMRE's ability to ensure prompt resolution of 
issues, which, if unattended, may result in OSMRE exercising the rare 
remedy of substituting Federal enforcement or withdrawing a State 
program. The definition of ``action plan,'' as finalized in Sec.  
733.5, will dovetail in practice with the concept of ``appropriate 
action'' found in Sec.  842.11(b)(1)(ii)(B)(3), in that a State 
regulatory authority's action plan may qualify as appropriate action in 
response to a TDN under that finalized Sec.  842.11(b)(1)(ii)(B)(3). In 
addition, the definition of ``State regulatory program issue,'' as 
finalized in Sec.  733.5, helps to further clarify the differences 
between the types of violations or issues that will be addressed under 
the TDN and Federal inspection process in section 521(a) and the State 
regulatory program enforcement provisions in section 521(b) of SMCRA, 
respectively.

Final Rule Sec.  733.10 Information Collection

    OSMRE is adopting this section as proposed. As discussed more fully 
in the Procedural Determinations below, no additional burden is placed 
on the public as a result of the enhancements to 30 CFR part 733. 
Moreover, no public comments were received on this section.

Final Rule Sec.  733.12 Early Identification and Corrective Action To 
Address State Regulatory Program Issues

    OSMRE proposed to redesignate certain sections of existing 30 CFR 
part 733 to accommodate both the proposed new definition section at 30 
CFR 733.5, discussed above, and the enhancement to 30 CFR part 733, 
proposed to be added as Sec.  733.12 entitled, ``Early identification 
and corrective action to address State regulatory program issues.'' 
This redesignation is being adopted as proposed because both sections--
Definitions and Early identification and corrective action to address 
State regulatory program issues--are being finalized.
    Final Sec.  733.12 contains substantive mechanisms and compliance 
strategies that OSMRE may use to resolve a State regulatory program 
issue (as defined in finalized 30 CFR 733.5). Although OSMRE and State 
regulatory authorities have historically worked closely and used 
similar approaches, incorporating these approaches into the regulations 
provides a clear mechanism for early identification and resolution of 
issues that will enable OSMRE to achieve regulatory certainty and 
uniform implementation of the procedures among State regulatory 
authorities. This addition to the regulations includes procedures for 
developing an action plan so that OSMRE can ensure that State 
regulatory program issues are timely resolved. When OSMRE identifies a 
State regulatory program issue, final Sec.  733.12(a) provides that the 
OSMRE Director should take action to make sure that the issue is 
corrected as soon as possible in order to ensure that it does not 
escalate into an issue that would give the Director reason to believe 
that the State regulatory authority is not effectively implementing, 
administering, enforcing, or maintaining all or a portion of its State 
regulatory program. The unresolved issue could otherwise trigger the 
process that might lead to substituting Federal enforcement of a State 
regulatory program or withdrawing approval of a State regulatory 
program as provided in 30 CFR part 733.
    OSMRE is finalizing Sec.  733.12(a)(1) as proposed with one minor 
modification. As proposed, this paragraph provided that ``[t]he 
Director may become aware of State regulatory program issues through 
oversight of State regulatory programs or as a result of information 
received from any person.'' In response to public comments, discussed 
in more detail above, OSMRE has substituted ``any source'' for the 
proposed language ``any person.'' OSMRE agrees with the commenter that 
this terminology is more expansive and inclusive and will likely result 
in OSMRE considering any information, no matter the source, about an 
alleged State regulatory program issue.
    In general, final Sec.  733.12(b) allows the OSMRE Director, or his 
or her delegate,

[[Page 75184]]

as set forth in OSMRE's guidance, to ``employ any number of compliance 
strategies to ensure that the State regulatory authority corrects a 
State regulatory program issue in a timely and effective manner.'' This 
finalized language reflects a minor, grammatical change from the 
proposed rule. OSMRE has added ``a'' before ``State regulatory 
program'' and removed the ``s'' from ``issues'' to clarify the meaning 
of the sentence and place the sentence in the singular tense.
    OSMRE has made another change to final Sec.  733.12(b). This change 
is in the second sentence that, as proposed, read: ``However, if the 
Director or delegate does not expect that the State regulatory 
authority will resolve the State regulatory program issue within 180 
days after identification or that it is likely to result in an on-the-
ground violation, then the Director or delegate will develop and 
institute an action plan.'' In the final rule, OSMRE has modified the 
second sentence to read: ``However, if the Director or delegate does 
not expect that the State regulatory authority will resolve the State 
regulatory program issue within 180 days after identification or that 
it is likely to result in a violation of the approved State program, 
then the Director or delegate will develop and institute an action 
plan.'' (Emphasis added to show the revised language). OSMRE has 
adopted this final language due to the variety of comments, discussed 
above, raising concerns about OSMRE's differentiation between 
violations outlined in 30 U.S.C. 1271(a)--subject to the 30 CFR part 
842 TDN process--and violations outlined in 30 U.S.C. 1271(b)--subject 
to 30 CFR part 733. Specifically, many commenters raised questions 
about how OSMRE would treat what the commenters characterized as 
``permit defects,'' which might be informally viewed, as mentioned 
above, as a deficiency in a permit-related action taken by a State 
regulatory authority or problems in a permit that do not align with the 
approved State regulatory program. However, OSMRE is not defining the 
term ``permit defects'' in this preamble or in the final rule and it is 
not defined in SMCRA, OSMRE regulations, or current internal OSMRE 
policies and should not be viewed as a distinct form of violation. To 
avoid confusion and the possibility of creating further ambiguity by 
introducing the new term ``on-the-ground violation'' into OSMRE 
regulations, OSMRE is removing this proposed phrase. The term ``on-the-
ground violation'' is also not defined in SMCRA, OSMRE regulations, or 
OSMRE internal documents and OSMRE declines to define this term as it 
may be misconstrued as a distinct type of violation. Therefore, OSMRE 
has decided, in response to comments, that it is best to substitute the 
phrase ``violation of the approved State program'' for the proposed 
phrase ``on-the-ground violation.'' The finalized phrase comports with 
the existing and finalized regulations at 30 CFR part 842 and bridges 
the gap between violations identified during the 30 U.S.C. 1271(a) TDN 
process that may actually be systemic in nature (and thus addressed in 
the 30 CFR part 733 State regulatory program issue process as finalized 
and authorized by 30 U.S.C. 1271(b)), but later results in a site-
specific violation of an approved State program. OSMRE acknowledges 
that a site-specific violation of an approved State program often 
manifests as an on-the-ground impact. However, these violations may 
also manifest in other ways, such as a permittee's failure to submit 
required design plans, monitoring reports, or annual certifications. 
OSMRE offers these as examples and not as an exhaustive list of 
potential violations of the approved State program that may result in 
OSMRE exercising site-specific enforcement under 30 U.S.C. 1271(a), 
rather than continuing to address them as State regulatory program 
issues under 30 U.S.C. 1271(b).
    As proposed, Sec.  733.12(b)(1)-(3) provided details about 
requirements of action plans. OSMRE is substantively adopting the 
proposed requirements for an action plan. Specifically, OSMRE will 
prepare a written action plan with ``specificity to identify the State 
regulatory program issue and an effective mechanism for timely 
correction.'' When OSMRE is preparing the action plan, OSMRE will 
consider any input it receives from the State regulatory authority. 
When selecting corrective measures to integrate into the action plan, 
OSMRE may consider any established or innovative solutions, including 
the compliance strategies referenced above. Additionally, finalized 
Sec.  733.12(b)(2), states that an action plan will identify any 
necessary technical or other assistance that the Director or his or her 
delegate can provide and remedial measures that a State regulatory 
authority must take immediately. Moreover, final Sec.  733.12(b)(3), 
describes the contents of an action plan. To ensure that OSMRE can 
adequately track action plans and that the underlying State regulatory 
program issue is resolved, each action plan, under the proposed rule, 
was to include: ``An action plan identification number''; ``A concise 
title and description of the State regulatory program issue''; 
``Explicit criteria for establishing when complete resolution will be 
achieved''; ``Explicit and orderly sequence of actions the State 
regulatory authority must take to remedy the problem''; ``A schedule 
for completion of each action in the sequence''; and ``A clear 
explanation that if the action plan, upon completion, does not result 
in correction of the State regulatory program issue, the provisions of 
30 CFR 733.13 may be triggered.'' The only modification OSMRE is making 
to final paragraphs 30 CFR 733.12(b)(1)-(3) is to add the preposition 
``an'' before ``action plan'' and remove the plural tense of action 
plan at the beginning of paragraphs (b)(1)-(3) to be grammatically 
correct and reflect the singular tense.
    OSMRE has made modifications to final Sec.  733.12(c) in response 
to a request by a NGO commenter to affirmatively state that OSMRE will 
track all identified State regulatory program issues and any associated 
action plans. Although it was OSMRE's intention to track and report 
both, OSMRE did not specifically state in the proposed rule that any 
action plan associated with identified a State regulatory program issue 
would be tracked and reported in the applicable State regulatory 
authority's Annual Evaluation report. OSMRE has removed this ambiguity 
by stating in the final rule that ``any associated action plan'' must 
also be tracked and reported in addition to the State regulatory 
program issues. Also, in response to the NGO commenter's request, OSMRE 
is including a requirement that the ``State regulatory authority Annual 
Evaluation reports will be accessible thorough OSMRE's website and at 
the applicable OSMRE office.'' OSMRE agrees with the commenter that 
this modification to the proposed rule promotes transparency and 
accountability.
    OSMRE is adopting Sec.  733.12(d) as proposed with one modification 
to comport with the change discussed above in relationship to final 
Sec.  733.12(b). Specifically, final Sec.  733.12(d) states that 
nothing in Sec.  733.12 ``prevents a State regulatory authority from 
taking direct enforcement action in accordance with its State 
regulatory program, or OSMRE from taking appropriate oversight 
enforcement action, in the event that a previously identified State 
regulatory program issue results in or may imminently result in a 
violation of the approved State program.'' OSMRE relies on the same 
rationale described above

[[Page 75185]]

for the removal of the term ``on-the-ground violation'' and the 
substitution of the phrase, ``a violation of the approved State 
program.'' In the context of finalized Sec.  733.12(d), determining 
whether a violation is imminent depends on the circumstances, and OSMRE 
will rely on the authorized representative to use his or her 
professional judgment to determine whether a violation of the approved 
State program is imminent in a given situation.
    In sum, finalized 30 CFR part 733 will ensure a more complete 
enforcement of SMCRA and provide guidance on early detection of 
potential problems that may, if left unaddressed, escalate to the point 
that OSMRE considers instituting the process that might result in OSMRE 
substituting Federal enforcement or withdrawing all or a portion a 
State program as outlined in finalized 30 CFR 733.13 through 733.14 
while preserving (through 30 CFR 733.12(d)) the ability to take direct 
enforcement action in the event that a previously identified State 
regulatory program issue results in or may imminently result in a 
violation of the approved State program.

Final Rule Part 736 Federal Program for a State

    OSMRE is updating the cross-reference in finalized Sec.  
736.11(a)(2) as proposed to account for the redesignation of existing 
``Sec.  733.12'' to finalized ``Sec.  733.13.''

Final Rule Sec.  842.11(b)(1)

    In the proposed rule, OSMRE explained that existing 30 CFR 
842.11(b)(1) describes the circumstances when OSMRE ``shall'' conduct a 
Federal inspection, but the paragraph primarily focuses on the process 
leading up to a Federal inspection, including the process for OSMRE's 
issuance of a TDN to a State regulatory authority. In general, 
consistent with section 521(a) of SMCRA, when there is no imminent harm 
situation and OSMRE issues a TDN to a State regulatory authority, OSMRE 
evaluates the State regulatory authority's response to the TDN before 
deciding whether to conduct a Federal inspection. Consistent with the 
existing regulations, and the regulations finalized today, OSMRE will 
issue a TDN to a State regulatory authority only when an authorized 
representative of OSMRE has reason to believe that there is a violation 
of SMCRA, the implementing regulations, the applicable State regulatory 
program, or any condition of a permit or an exploration approval. In 
general, OSMRE will also conduct a Federal inspection whenever there is 
any condition, practice, or violation that creates an imminent danger 
to the health or safety of the public or is causing, or that OSMRE 
reasonably expects to cause, a significant, imminent, environmental 
harm to land, air, or water resources. In the latter situation, OSMRE 
bypasses the TDN process and proceeds directly to a Federal inspection, 
if the person supplying the information provides adequate proof that 
there is an imminent danger to the public health and safety or a 
significant, imminent environmental harm and that the State regulatory 
authority has failed to take appropriate action.
    OSMRE proposed to alter the introductory sentence at existing 30 
CFR 842.11(b)(1), by replacing the word ``shall'' with the word 
``will.'' However, after consideration of public comments, discussed in 
more detail above, and based on OSMRE's own expertise and analysis, 
OSMRE has determined that the word ``must'' is more appropriate because 
it explains an action that OSMRE is obligated to institute as 
prescribed by SMCRA under the circumstances described in 30 CFR 
842.11(b)(1). Therefore, the final rule substitutes the word ``must'' 
for ``will'' to better communicate the mandatory nature of the 
authorized representative's action.

Final Rule Sec.  842.11(b)(1)(i)

    In the proposed rule, OSMRE also proposed to clarify that when an 
authorized representative assesses whether he or she has reason to 
believe a violation exists, the authorized representative will make 
that determination on the basis of ``any information readily available 
to him or her.'' This clarification is consistent with section 
521(a)(1) of SMCRA, which sets forth that OSMRE can formulate reason to 
believe ``on the basis of any information available to [the Secretary], 
including receipt of information from any person.'' 30 U.S.C. 
1271(a)(1). Based on SMCRA's plain language, such information is not 
restricted to information OSMRE receives from a citizen complainant. 
Rather, the information includes any information OSMRE receives from a 
citizen, the applicable State regulatory authority, or any other 
information OSMRE is aware exists. Also, the final rule and the 
preamble discussion above that is associated with this section 
clarifies that such information must be readily available, so that the 
process will proceed as quickly as possible and will not become open-
ended. OSMRE is adopting this section as proposed, with one exception. 
In response to several comments, discussed in more detail above, OSMRE 
is further clarifying this section by adding to the final rule the 
phrase, ``from any source, including any information a citizen 
complainant or the relevant State regulatory authority submits, . . .'' 
This addition to the final rule now makes Sec.  842.11(b)(1)(i) 
harmonize with final rule Sec.  842.11(b)(2) that now includes the same 
phraseology.

Final Rule Sec.  842.11(b)(1)(ii)(A)

    Existing 30 CFR 842.11(b)(1)(ii)(A) reads as follows: ``There is no 
State regulatory authority or the Office is enforcing the State program 
under section 504(b) or 521(b) of the Act and part 733 of this 
chapter[.]'' OSMRE proposed only minor grammatical and conformity 
changes to this section. Specifically, OSMRE proposed to add the word 
``regulatory'' between the words ``State'' and ``program'' to promote 
consistency throughout this rulemaking and clarify that OSMRE is 
referring to State regulatory programs. OSMRE has finalized this 
section as proposed.

Final Rule Sec.  842.11(b)(1)(ii)(B)(1)-(4)

    OSMRE proposed non-substantive changes to existing 30 CFR 
842.11(b)(1)(ii)(B)(1) for readability, including capitalizing 
``State'' when referring to the ``State regulatory authority'' and 
adding a comma after ``notification'', and changing the word ``shall'' 
to ``will''. These changes have been adopted as proposed. OSMRE did not 
propose any modification to the existing regulation at 30 CFR 
842.11(b)(1)(ii)(B)(2), but the provision is discussed above to provide 
context related to the proposed clarifications in 30 CFR 
842.11(b)(1)(ii)(B)(3), which describes the term ``appropriate 
action,'' and 30 CFR 842.11(b)(1)(ii)(B)(4), which describes the term 
``good cause.'' Likewise, OSMRE is not altering Sec.  
842.11(b)(1)(ii)(B)(1).

Final Rule Sec.  842.11(b)(1)(ii)(B)(3)

    OSMRE proposed to add a provision to existing 30 CFR 
842.11(b)(1)(ii)(B)(3), that appropriate action ``may include OSMRE and 
the State regulatory authority immediately and jointly initiating steps 
to implement corrective action to resolve any issue that the authorized 
representative and applicable Field Office Director identify as a State 
regulatory program issue, as defined in 30 CFR part 733.'' OSMRE is 
finalizing this subsection as proposed. The final rule gives the 
responsibility for identification of State regulatory program issues to 
the authorized representative and applicable Field

[[Page 75186]]

Office Director, as these officials possess significant knowledge of 
the specific requirements of and responsibilities under the applicable 
State regulatory program. Although OSMRE has historically allowed 
programmatic resolution of State regulatory program issues, such as 
implementation of remedies under 30 CFR part 732, to constitute 
``appropriate action'' in a given situation, the regulations prior to 
this addition did not explain resolution of State regulatory program 
issues through corrective actions. In order to avoid confusion or 
uncertainty for the regulated community, State regulatory authorities, 
and the public at large, the finalized rule seeks to remove ambiguity 
and definitively states that ``appropriate action'' may include 
corrective action to resolve State regulatory program issues. This fits 
well with the finalized part 733 because final Sec.  733.12(a)(2) 
reaffirms that, if OSMRE concludes that the State regulatory authority 
is not effectively implementing, administering, enforcing, or 
maintaining all or a portion of its State regulatory program, OSMRE may 
substitute Federal enforcement of the State regulatory program or 
withdraw approval. Additionally, in accordance with finalized Sec.  
733.12(d), OSMRE reserves the right to reinstitute enforcement if, 
subsequent to a finding of appropriate action based upon a corrective 
action consistent with proposed 30 CFR part 733, a violation of the 
approved State program occurs or may imminently occur.

Final Rule Sec.  842.11(b)(1)(ii)(B)(4)

    OSMRE is adopting this subsection as proposed. Specifically, the 
final rule makes minor clarifications to the examples of what 
constitutes good cause as found in the existing regulations. First, 
final Sec.  842.11(b)(1)(ii)(B)(4)(i) makes non-substantive changes for 
readability and consistency by adding the word ``regulatory'' between 
``State'' and ``program'' and switching the position of two phrases in 
the provision. Second, the final rule revises Sec.  
842.11(b)(1)(ii)(B)(4)(ii) to provide that good cause includes: ``The 
State regulatory authority has initiated an investigation into a 
possible violation and as a result has determined that it requires a 
reasonable, specified additional amount of time to determine whether a 
violation exists.'' The final rule explains that an OSMRE authorized 
representative has discretion to determine how long the State 
regulatory authority should reasonably be given to complete its 
investigation of a possible violation. Also, under the final rule the 
authorized representative will communicate to the State regulatory 
authority the date by which the State regulatory authority's 
investigation must be completed. This revision promotes prompt 
identification and resolution of possible violations.
    As proposed, the final rule makes a minor revision to Sec.  
842.11(b)(1)(ii)(B)(4)(iii). A State regulatory authority will 
demonstrate that it lacks jurisdiction over the possible violation to 
qualify for this good cause showing.
    Similarly, as proposed, the final rule makes a minor, non-
substantive modifications to Sec.  842.11(b)(1)(ii)(B)(4)(iv) for 
readability and to clarify that, in order to show good cause, the State 
regulatory authority will demonstrate that an order from an 
administrative review body or court of competent jurisdiction precludes 
it from taking action on the possible violation.
    Finally, as proposed, the final rule makes minor, non-substantive 
modifications to Sec.  841.11(b)(1)(ii)(B)(4)(v) to enhance readability 
and clarity. Specifically, the final rule reads: ``Regarding abandoned 
sites, as defined in 30 CFR 840.11(g), the State regulatory authority 
is diligently pursuing or has exhausted all appropriate enforcement 
provisions of the State regulatory program.''

Final Rule Sec.  842.11(b)(2)

    Section 842.11(b)(2) defines what is ``reason to believe'' when an 
authorized representative is determining if a possible violation exists 
as presented by a citizen complainant.
    Because there was ambiguity surrounding this term, OSMRE proposed 
to revise this section to provide that an authorized representative 
will have reason to believe that a violation, condition, or practice 
referred to in paragraph (b)(1)(i) exists if the facts that a 
complainant alleges, or facts that are otherwise known to the 
authorized representative, constitute simple and effective 
documentation of the alleged violation, condition, or practice. In 
making this determination, the authorized representative will consider 
any information readily available to him or her, including any 
information a citizen complainant or the relevant regulatory authority 
submits to the authorized representative.
    As discussed in great detail in response to comments above, OSMRE 
is adopting this section as proposed, with one exception. Consistent 
with this approach, the final rule modifies Sec.  842.11(b)(2) to 
clarify that OSMRE will consider any information readily available and 
not only the facts alleged in a citizen complaint when determining 
whether it has reason to believe a violation exists. Nothing in SMCRA 
requires OSMRE to accept alleged facts as true in a vacuum. Rather, 
information that a citizen provides is usually only a portion of the 
readily available information that OSMRE would consider when deciding 
whether to initiate the TDN process. Moreover, the inclusion of the 
phrase ``reason to believe'' in section 521(a)(1) of SMCRA indicates 
that Congress intended for OSMRE to use discretion in determining 
whether to issue a TDN to a State regulatory authority. With the 
changes finalized today, after OSMRE receives an allegation of a 
violation and assess all readily available information, OSMRE will 
apply independent, professional judgment to determine whether OSMRE has 
reason to believe a violation exists. Congress created OSMRE to be the 
expert agency that administers SMCRA. Therefore, OSMRE should not be 
acting as a mere conduit for transmitting a citizen complaint to a 
State regulatory authority in the form of a TDN.
    In response to a few commenters, OSMRE has added the phrase ``from 
any source'' in the last sentence of the finalized section. 
Specifically, the last sentence, will now read, ``[i]n making this 
determination, the authorized representative will consider any 
information readily available to him or her, from any source, including 
any information a citizen complainant or the relevant regulatory 
authority submits to the authorized representative'' (emphasis added to 
show the revised language). This change is to clarify that an 
authorized representative may consider any information readily 
available, regardless of where the information originates.
    In summary, final Sec.  842.11(b)(2) comports with finalized Sec.  
842.11(b)(1)(i), which allows OSMRE to consider ``any information 
readily available'' when making a ``reason to believe'' determination. 
Being able to read these two provisions in harmony should reduce or 
eliminate any conflict or confusion that the existing provisions 
created.

Final Sec.  842.12(a)

    OSMRE is adopting Sec.  842.12(a) as proposed. Specifically, 30 CFR 
842.12(a) identifies the process to request a Federal inspection. This 
finalized provision states that a person may request a Federal 
inspection by submitting a signed, written statement (or an oral report 
followed by a signed written statement) giving the authorized 
representative reason to believe that a

[[Page 75187]]

violation, condition or practice referred to in Sec.  842.11(b)(1)(i) 
exists and that the State regulatory authority has been notified in 
writing about the violation. The final rule includes the minor, non-
substantive modifications to the provision as proposed. These 
provisions provide that when any person requests a Federal inspection, 
the person's written statement ``must also set forth the fact that the 
person has notified the State regulatory authority, if any, in writing, 
of the existence of the possible violation, condition, or practice'' 
and the requirement that the person's statement must also include ``the 
basis for the person's assertion that the State regulatory authority 
has not taken action with respect to the possible violation.'' These 
provisions reflect the fact that, most often, a State regulatory 
authority will address a potential violation when the State regulatory 
authority is made aware of the situation.
    Finalized 30 CFR 842.12(a) complements the clarifications outlined 
above in the discussion of finalized Sec.  842.11(b)(1)'s ``reason to 
believe'' standard. Specifically, the final rule modifies the existing 
language in Sec.  842.12(a) to clarify that, when a person requests a 
Federal inspection, the person's request must include, ``information 
that, along with any other readily available information, may give the 
authorized representative reason to believe that a violation, 
condition, or practice referred to in Sec.  842.11(b)(1)(i) exists.''
    OSMRE reiterates that under finalized Sec.  842.12(a), when OSMRE 
determines whether a violation exists for purposes of issuing a TDN or 
determining whether to conduct a Federal inspection, a State regulatory 
program issue will not qualify as a possible violation unless there is 
an actual or imminent violation of an approved State program. 
Similarly, OSMRE will not consider a State regulatory authority's 
failure to enforce its State regulatory program as a violation that 
warrants a TDN or Federal inspection. The TDN and Federal inspection 
process in section 521(a) applies to oversight enforcement about site-
specific violations. Congress differentiated this type of individual 
operation oversight from the State regulatory program enforcement 
provisions of section 521(b). Based on this distinction, the existing 
30 CFR part 733 addresses State regulatory program issue enforcement 
identified in section 521(b).

VI. Procedural Determinations

A. Statutes

1. Congressional Review Act
    Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq., the 
Office of Information and Regulatory Affairs (OIRA) of the Office of 
Management and Budget (OMB) has determined that this rulemaking is not 
major rulemaking, as defined by 5 U.S.C. 804(2), because this 
rulemaking has not resulted in, and is unlikely to result in: (1) An 
annual effect on the economy of $100,000,000 or more; (2) a major 
increase in costs or prices for consumers, individual industries, 
Federal, State, or local government, or geographic regions; or (3) 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.
2. Data Quality Act
    In developing this rule, OSMRE did not conduct or use a study, 
experiment, or survey requiring peer review under the Data Quality Act 
(Pub. L. 106-544, app. C, sec. 515, 114 Stat. 2763, 2763A-153-154).
3. National Environmental Policy Act
    OSMRE has determined that the non-substantive changes finalized in 
this rulemaking are categorically excluded from environmental review 
under NEPA. 42 U.S.C. 4321 et seq. Specifically, OSMRE has determined 
that the final rule is administrative or procedural in nature in 
accordance with the Department of the Interior's NEPA regulations at 43 
CFR 46.210(i). The regulation provides a categorical exclusion for, 
``[p]olicies, directives, regulations, and guidelines: That are of an 
administrative, financial, legal, technical, or procedural nature; or 
whose environmental effects are too broad, speculative, or conjectural 
to lend themselves to meaningful analysis. . . .'' The final rule 
primarily clarifies how OSMRE formulates reason to believe in the TDN 
context and the information OSMRE considers in this analysis. It also 
enhances a process, the development of an action plan, that already 
exists in an internal agency document so that OSMRE can better ensure 
that a State regulatory authority adequately implements, administers, 
enforces, and maintains its approved State program. As such, the final 
rule merely clarifies and enhances OSMRE's existing processes. 
Therefore, OSMRE deems these changes to be administrative and 
procedural in nature. These clarifications and enhancements are aimed 
at improving efficiency and enhanced collaboration among State 
regulatory authorities and OSMRE. OSMRE has also determined that the 
final rule does not involve any of the extraordinary circumstances 
listed in 43 CFR 46.215 that would require further analysis under NEPA.
4. National Technology Transfer and Advancement Act
    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) (15 U.S.C. 3701 note et seq.) directs Federal agencies to 
use voluntary consensus standards when implementing regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. This final rule is not subject to the 
requirements of section 12(d) of the NTTAA because application of those 
requirements would be inconsistent with SMCRA, and the requirements 
would not be applicable to this final rulemaking.
5. Paperwork Reduction Act
    The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) provides 
that an agency may not conduct or sponsor, and a person is not required 
to respond to, a ``collection of information'', unless the collection 
of information is approved by OMB, and it displays a currently valid 
OMB control number. Of the existing regulations impacted by the final 
rule (30 CFR parts 733, 736, and 842), 30 CFR parts 733 and 842 have 
existing OMB control numbers. However, after research and input from 
State regulatory authorities, no additional burden is imposed by the 
enhancement of 30 CFR part 733--specifically the codification of 30 CFR 
733.12--Early identification of corrective action and corrective action 
to address State regulatory program issues. Additionally, as explained 
herein the only modification of 30 CFR part 736 is to revise a cross-
reference to be consistent with the redesignation of provisions within 
30 CFR part 733. Existing 30 CFR part 842 requires an OMB information 
collection because it allows citizens to submit a written request for a 
Federal inspection using an OMB-approved form. See OMB No. 1029-0118 
available on OSMRE's website. https://www.osmre.gov/resources/forms/OMB1029-0118.pdf. This final rule will not alter the PRA obligations 
under 30 CFR part 842. Similar to the research performed by OSMRE in 
relationship to 30 CFR part 733 as finalized, OSMRE has discovered that 
the clarification of 30 CFR part 842 will not place any additional 
burden on

[[Page 75188]]

the public, including, ``individuals, businesses, and State, local, and 
Tribal governments'' as defined in the PRA. In fact, under this final 
rule, the burden will be reduced. Therefore, this final rule will not 
impose an additional collection of information burden, as defined by 44 
U.S.C. 3502, upon any entity defined in the PRA. Moreover, no public 
comments were received on this matter.
6. Regulatory Flexibility Act
    The Regulatory Flexibility Act generally requires Federal agencies 
to prepare a regulatory flexibility analysis for rules that are subject 
to the notice-and-comment rulemaking requirements under the 
Administrative Procedure Act (5 U.S.C. 553), if the rule would have a 
significant economic impact on a substantial number of small entities. 
See 5 U.S.C. 601-612. Based on OSMRE's collaboration with State 
regulatory authorities and years of experience, OSMRE certifies that 
this final 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.).
7. Small Business Regulatory Enforcement Fairness Act
    This final rule is not a major rule under the Small Business 
Regulatory Enforcement Fairness Act. 5 U.S.C. 804(2). Specifically, the 
final rule: (1) Will not have an annual effect on the economy of $100 
million or more; (2) will not cause a major increase in costs or prices 
for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions; and (3) will not have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United-States based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.
8. Unfunded Mandates Reform Act
    This final rule does not impose an unfunded mandate or have a 
significant or unique effect on State, local, or Tribal governments, or 
the private sector, that will result in the expenditure of funds by 
State, local, or Tribal governments, in the aggregate, or by the 
private sector of $100 million or more in any one year. To the 
contrary, as discussed herein, this final rule is aimed at eliminating 
duplication of resources and processes between Federal and State 
agencies and enhancing cooperation between OSMRE and State regulatory 
authorities. Therefore, a statement containing the information required 
by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not 
required.

B. Executive Orders

1. Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights
    This final rule does not effect a taking of private property or 
otherwise have takings implications under E.O. 12630. The final rule 
primarily concerns Federal oversight of State regulatory programs and 
enforcement when permittees and operators are not complying with the 
law. Therefore, the final rule will not result in private property 
being taken for public use without just compensation. A takings 
implication assessment is not required.
2. Executive Order 12866--Regulatory Planning and Review and Executive 
Order 13563--Improving Regulation and Regulatory Review
    E.O. 12866 provides that OIRA in the OMB will review all 
significant rules. Despite being specifically briefed on this 
rulemaking as proposed and as finalized, both in writing and verbally, 
OIRA has not deemed this final rule significant because it will not 
have a $100 million annual impact on the economy, raise novel legal 
issues, or create significant impacts. The final rule primarily 
clarifies and enhances the existing regulations and OSMRE's processes 
to reduce the burden upon the regulated community and preserve 
resources by allowing for greater cooperation between OSMRE and State 
regulatory authorities.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, reduce uncertainty, and use the best, most innovative, 
and least burdensome tools for achieving regulatory ends. The Executive 
Order directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that agencies must 
base regulations on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. This final rule has been developed in a manner consistent with 
and will further these requirements.
3. Executive Order 12988--Civil Justice Reform
    This final rule complies with the requirements of E.O. 12988. Among 
other things, this rule:
    (a) Satisfies the criteria of Section 3(a) requiring that all 
regulations be reviewed to eliminate drafting errors and ambiguity; be 
written to minimize litigation; and provide clear legal standards for 
affected conduct; and
    (b) satisfies the criteria of Section 3(b) requiring that all 
regulations be written in clear language and contain clear legal 
standards.
4. Executive Order 13045--Protection of Children From Environmental 
Health Risks and Safety Risks
    E.O. 13045 requires that environmental and related rules separately 
evaluate the potential impact to children. However, this final rule is 
not subject to E.O. 13045 because this is not an economically 
significant regulatory action as defined by E.O. 12866; and this action 
will not concern environmental health or safety risks 
disproportionately affecting children.
5. Executive Order 13132--Federalism
    Under the criteria in Section 1 of E.O. 13132, this final rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement. While OSMRE's clarification 
and enhancement of the existing regulations and processes in this final 
rule will have a direct effect on OSMRE's relationship with the States, 
this effect is not significant as it neither imposes substantial 
unreimbursed compliance costs on States nor preempts State law. 
Furthermore, this final rule does not have a significant effect on the 
distribution of power and responsibilities among the various levels of 
government. In fact, the final rule will reduce burdens on State 
regulatory authorities and more closely align the regulations to SMCRA. 
Therefore, a federalism summary impact statement is not required.
6. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments
    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. OSMRE has evaluated this final rule 
under the Department's consultation policy and under the criteria in 
E.O. 13175 and has determined that it will not have

[[Page 75189]]

substantial direct effects on federally recognized Tribes and that 
consultation under the Department's tribal consultation policy is not 
required. Currently, no Tribes have achieved primacy; therefore, OSMRE 
regulates all surface coal mining and reclamation operations on Indian 
lands with tribal input and assistance. Currently, OSMRE works in 
conjunction with the Crow, Hopi, and Navajo regarding enforcement of 
surface coal mining and reclamation operations. This final rulemaking 
will not directly impact the Tribes. However, because these three 
Tribes have expressed interest in perhaps having their own regulatory 
programs in the future, OSMRE has coordinated with the Crow, Hopi, and 
Navajo to inform them of, and to provide updates on the final 
rulemaking. OSMRE attended quarterly meetings of the Tribes in order to 
provide an overview of the proposed rule, provide updates on the 
rulemaking process, and address questions posed by the Tribes.
7. Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    E.O. 13211 requires agencies to prepare a Statement of Energy 
Effects for a rule that is: (1) Considered significant under E.O. 
12866, and (2) likely to have a significant adverse effect on the 
supply, distribution, or use of energy; or is designated as a 
significant energy action by OMB. Because this final rule is not deemed 
significant under E.O. 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.
8. Executive Order 13771--Reducing Regulation and Controlling 
Regulatory Costs
    E.O. 13771 directs Federal agencies to reduce the regulatory burden 
on regulatory entities and control regulatory costs. Consistent with 
E.O. 13771 and the April 5, 2017, Guidance Implementing E.O. 13771, the 
final rule will have total costs less than zero. Moreover, this final 
rule operates to reduce the burden on State regulatory authorities by 
promoting coordination between OSMRE and States, eliminating 
duplication of processes, and increasing efficiency in resolving State 
regulatory authority program issues. In addition, this final rule 
provides compliance clarity to the regulatory community. Therefore, 
this final rule is a deregulatory action.
9. Executive Order 13783--Promoting Energy Independence and Economic 
Growth
    Section 2 of E.O. 13783 requires agencies to ``review all existing 
regulations, orders, guidance documents, policies, and any other 
similar agency actions'' with the goal of eliminating provisions that 
impede domestic energy production. Section 2(a) exempts agency actions 
``that are mandated by law, necessary for the public interest, and 
consistent with the policy [to remove unnecessary regulatory burdens on 
domestic energy production while promoting clean air and water within 
the constraints of current statutes].'' OSMRE, in conjunction with its 
State regulatory authority partners, has determined that this final 
rule promotes coordination ``with other Federal agencies and State 
regulatory authorities to minimize duplication of inspections, 
enforcement, and administration of [SMCRA]'' as specified by 30 U.S.C. 
1211(c)(12) while also furthering the purposes of SMCRA including, but 
not limited to, assuring that surface coal mining operations are so 
conducted as to protect the environment and to strike the appropriate 
balance ``between protection of the environment and agricultural 
productivity and the Nation's need for coal as an essential source of 
energy.'' See 30 U.S.C. 1202(d) and (f). In sum, OSMRE finds that this 
final rule satisfies the requirements of E.O. 13783 by appropriately 
removing unnecessary duplication of Federal and State efforts that 
impedes efficient oversight and enforcement of SMCRA and that may 
otherwise divert valuable time and monetary resources and impede or 
burden domestic energy production.

List of Subjects

30 CFR Part 733

    Intergovernmental relations, Surface mining, Underground mining.

30 CFR Part 736

    Coal mining, Intergovernmental relations, Surface mining, 
Underground mining.

30 CFR Part 842

    Law enforcement, Surface mining, Underground mining.

David L. Bernhardt,
Secretary, U.S. Department of the Interior.

    For the reasons set out in the preamble, the Department of the 
Interior, acting through OSMRE, amends 30 CFR parts 733, 736, and 842 
as follows:

PART 733--EARLY IDENTIFICATION OF CORRECTIVE ACTION, MAINTENANCE OF 
STATE PROGRAMS, PROCEDURES FOR SUBSTITUTING FEDERAL ENFORCEMENT OF 
STATE PROGRAMS, AND WITHDRAWING APPROVAL OF STATE PROGRAMS

0
1. The authority citation for part 733 is revised to read as follows:

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


0
2. The heading of part 733 is revised to read as set forth above.

0
3. Add Sec.  733.5 to read as follows:


Sec.  733.5  Definitions.

    As used in this part, the following terms have the specified 
meanings:
    Action plan means a detailed schedule OSMRE prepares to identify 
specific requirements a State regulatory authority must achieve in a 
timely manner to resolve State regulatory program issues identified 
during oversight of State regulatory programs.
    State regulatory program issue means an issue OSMRE identifies 
during oversight of a State or Tribal regulatory program that could 
result in a State regulatory authority not effectively implementing, 
administering, enforcing, or maintaining all or any portion of its 
State regulatory program, including instances when a State regulatory 
authority has not adopted and implemented program amendments that are 
required under 30 CFR 732.17 and 30 CFR subchapter T, and issues 
related to the requirement in section 510(b) of the Act that a State 
regulatory authority must not approve a permit or revision to a permit 
unless the State regulatory authority finds that the application is 
accurate and complete and that the application is in compliance with 
all requirements of the Act and the State regulatory program.

0
4. Revise Sec.  733.10 to read as follows:


Sec.  733.10   Information collection.

    The information collection requirement contained in Sec.  
733.13(a)(2) has been approved by the Office of Management and Budget 
under 44 U.S.C. 3507 and assigned clearance number 1029-0025. The 
information required is needed by OSMRE to verify the allegations in a 
citizen request to evaluate a State program and to determine whether an 
evaluation should be undertaken.


Sec. Sec.  733.12 and 733.13   [Redesignated as Sec. Sec.  733.13 and 
733.14]

0
5. Redesignate Sec. Sec.  733.12 and 733.13 as Sec. Sec.  733.13 and 
733.14, respectively.

[[Page 75190]]


0
6. Add a new Sec.  733.12 to read as follows:


Sec.  733.12  Early identification and corrective action to address 
State regulatory program issues.

    (a) When the Director identifies a State regulatory program issue, 
he or she should take action to make sure the identified State 
regulatory program issue is corrected as soon as possible in order to 
ensure that it does not escalate into an issue that would give the 
Director reason to believe that the State regulatory authority is not 
effectively implementing, administering, enforcing, or maintaining all 
or a portion of its State regulatory program.
    (1) The Director may become aware of State regulatory program 
issues through oversight of State regulatory programs or as a result of 
information received from any source.
    (2) If the Director concludes that the State regulatory authority 
is not effectively implementing, administering, enforcing, or 
maintaining all or a portion of its State regulatory program, the 
Director may substitute Federal enforcement of a State regulatory 
program or withdraw approval of a State regulatory program as provided 
in this part.
    (b) The Director or his or her delegate may employ any number of 
compliance strategies to ensure that the State regulatory authority 
corrects a State regulatory program issue in a timely and effective 
manner. However, if the Director or delegate does not expect that the 
State regulatory authority will resolve the State regulatory program 
issue within 180 days after identification or that it is likely to 
result in a violation of the approved State program, then the Director 
or delegate will develop and institute an action plan.
    (1) An action plan will be written with specificity to identify the 
State regulatory program issue and an effective mechanism for timely 
correction.
    (2) An action plan will identify any necessary technical or other 
assistance that the Director or his or her delegate can provide and 
remedial measures that a State regulatory authority must take 
immediately.
    (3) An action plan must also include:
    (i) An action plan identification number;
    (ii) A concise title and description of the State regulatory 
program issue;
    (iii) Explicit criteria for establishing when complete resolution 
will be achieved;
    (iv) Explicit and orderly sequence of actions the State regulatory 
authority must take to remedy the problem;
    (v) A schedule for completion of each action in the sequence; and
    (vi) A clear explanation that if the action plan, upon completion, 
does not result in correction of the State regulatory program issue, 
the provisions of Sec.  733.13 may be triggered.
    (c) All identified State regulatory program issues and any 
associated action plan must be tracked and reported in the applicable 
State regulatory authority's Annual Evaluation report. These State 
regulatory authority Annual Evaluation reports will be accessible 
through OSMRE's website and at the applicable OSMRE office. Within each 
report, benchmarks identifying progress related to resolution of the 
State regulatory program issue must be documented.
    (d) Nothing in this section prevents a State regulatory authority 
from taking direct enforcement action in accordance with its State 
regulatory program, or OSMRE from taking appropriate oversight 
enforcement action, in the event that a previously identified State 
regulatory program issue results in or may imminently result in a 
violation of the approved State program.

PART 736--FEDERAL PROGRAM FOR A STATE

0
7. The authority citation for part 736 continues to read as follows:

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


0
8. Revise Sec.  736.11(a)(2) to read as follows:


Sec.  736.11  General procedural requirements.

    (a) * * *
    (2) The Director shall promulgate a complete Federal program for a 
State upon the withdrawal of approval of an entire State program under 
30 CFR 733.13.
* * * * *

PART 842--FEDERAL INSPECTIONS AND MONITORING

0
9. The authority citation for part 842 continues to read as follows:

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


0
10. Amend Sec.  842.11 by revising paragraphs (b)(1) introductory text, 
(b)(1)(i), (b)(1)(ii)(A), (b)(1)(ii)(B)(1), (3), and (4), and (b)(2) to 
read as follows:


Sec.  842.11   Federal inspections and monitoring.

* * * * *
    (b)(1) An authorized representative of the Secretary must 
immediately conduct a Federal inspection:
    (i) When the authorized representative has reason to believe on the 
basis of any information readily available to him or her, from any 
source, including any information a citizen complainant or the relevant 
State regulatory authority submits (other than information resulting 
from a previous Federal inspection), that there exists a violation of 
the Act, this chapter, the State regulatory program, or any condition 
of a permit or an exploration approval, or that there exists any 
condition, practice, or violation that creates an imminent danger to 
the health or safety of the public or is causing or could reasonably be 
expected to cause a significant, imminent environmental harm to land, 
air, or water resources; and
    (ii)(A) There is no State regulatory authority or the Office is 
enforcing the State regulatory program under section 504(b) or 521(b) 
of the Act and part 733 of this chapter; or
    (B)(1) The authorized representative has notified the State 
regulatory authority of the possible violation and more than ten days 
have passed since notification, and the State regulatory authority has 
not taken appropriate action to cause the violation to be corrected or 
to show good cause for not doing so, or the State regulatory authority 
has not provided the authorized representative with a response. After 
receiving a response from the State regulatory authority, but before a 
Federal inspection, the authorized representative will determine in 
writing whether the standards for appropriate action or good cause have 
been satisfied. A State regulatory authority's failure to respond 
within ten days does not prevent the authorized representative from 
making a determination, and will constitute a waiver of the State 
regulatory authority's right to request review under paragraph 
(b)(1)(iii) of this section.
* * * * *
    (3) Appropriate action includes enforcement or other action 
authorized under the approved State program to cause the violation to 
be corrected. Appropriate action may include OSMRE and the State 
regulatory authority immediately and jointly initiating steps to 
implement corrective action to resolve any issue that the authorized 
representative and applicable Field Office Director identify as a State 
regulatory program issue, as defined in 30 CFR part 733.
    (4) Good cause includes:
    (i) The possible violation does not exist under the State 
regulatory program;
    (ii) The State regulatory authority has initiated an investigation 
into a possible

[[Page 75191]]

violation and as a result has determined that it requires a reasonable, 
specified additional amount of time to determine whether a violation 
exists. When analyzing the State regulatory authority's response for 
good cause, the authorized representative has discretion to determine 
how long the State regulatory authority should reasonably be given to 
complete its investigation of the possible violation and will 
communicate to the State regulatory authority the date by which the 
investigation must be completed. At the conclusion of the specified 
additional time, the authorized representative will re-evaluate the 
State regulatory authority's response including any additional 
information provided;
    (iii) The State regulatory authority demonstrates that it lacks 
jurisdiction over the possible violation under the State regulatory 
program;
    (iv) The State regulatory authority demonstrates that it is 
precluded from taking action on the possible violation because an 
administrative review body or court of competent jurisdiction has 
issued an order concluding that the possible violation does not exist 
or that the temporary relief standards of the State regulatory program 
counterparts to section 525(c) or 526(c) of the Act have been 
satisfied; or
    (v) Regarding abandoned sites, as defined in 30 CFR 840.11(g), the 
State regulatory authority is diligently pursuing or has exhausted all 
appropriate enforcement provisions of the State regulatory program.
* * * * *
    (2) An authorized representative will have reason to believe that a 
violation, condition, or practice referred to in paragraph (b)(1)(i) of 
this section exists if the facts that a complainant alleges, or facts 
that are otherwise known to the authorized representative, constitute 
simple and effective documentation of the alleged violation, condition, 
or practice. In making this determination, the authorized 
representative will consider any information readily available to him 
or her, from any source, including any information a citizen 
complainant or the relevant State regulatory authority submits to the 
authorized representative.
* * * * *

0
11. Revise Sec.  842.12(a) to read as follows:


Sec.  842.12  Requests for Federal inspections.

    (a) Any person may request a Federal inspection under Sec.  
842.11(b) by providing to an authorized representative a signed, 
written statement (or an oral report followed by a signed written 
statement) setting forth information that, along with any other readily 
available information, may give the authorized representative reason to 
believe that a violation, condition, or practice referred to in Sec.  
842.11(b)(1)(i) exists. The statement must also set forth the fact that 
the person has notified the State regulatory authority, if any, in 
writing, of the existence of the possible violation, condition, or 
practice, and the basis for the person's assertion that the State 
regulatory authority has not taken action with respect to the possible 
violation. The statement must set forth a phone number, address, and, 
if available, an email address where the person can be contacted.
* * * * *
[FR Doc. 2020-24137 Filed 11-23-20; 8:45 am]
BILLING CODE 4310-05-P