[Federal Register Volume 68, Number 39 (Thursday, February 27, 2003)]
[Rules and Regulations]
[Pages 9500-9502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4647]
[[Page 9499]]
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Part V
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Part 875
Abandoned Mine Land Reclamation Notices; Final Rule
Federal Register / Vol. 68, No. 39 / Thursday, February 27, 2003 /
Rules and Regulations
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 875
RIN: 1029-AB99
Abandoned Mine Land Reclamation Notices
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: We are revising our regulations governing the processing of
State and tribal grant applications to build public facilities using
Abandoned Mine Land (AML) Reclamation Funds. The existing regulations
require us to publish a Federal Register notice whenever we receive a
grant application to build a public facility. We are changing this
requirement to one that requires us to publish a notice only when the
Director of the Office of Surface Mining (OSM) finds it necessary to
ensure adequate public notice of the grant application. We are also
correcting errors in four cross-references.
EFFECTIVE DATE: March 31, 2003.
FOR FURTHER INFORMATION CONTACT: Danny Lytton, Office of Surface Mining
Reclamation and Enforcement, U.S. Department of the Interior, 1951
Constitution Avenue, NW., MS-121-SIB, Washington DC 20240; Telephone:
202-208-2788; E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background and Discussion of the Final Rule
II. Discussion of the Public Comments Received
III. How Will This Rule Affect State and Indian Programs?
IV. Procedural Matters and Required Determinations
I. Background and Discussion of the Final Rule
On June 19, 2002, we published in the Federal Register (67 FR
41756) proposed revisions to our regulations at 30 CFR 875.15(f). Those
regulations govern public notification for certain non-coal reclamation
projects funded by the AML Reclamation Fund. There are 23 States and 3
Indian tribes with approved AML programs. Only 6 of these programs are
currently certified for non-coal reclamation projects, i.e., all of
their existing known coal-related reclamation objectives have been
completed. They are the programs of the States of Louisiana, Montana,
Texas and Wyoming, and the Hopi Tribe and Navajo Nation. Only these 6
programs are, therefore, eligible for 30 CFR part 875 AML funding of
non-coal reclamation projects.
The current regulations at 30 CFR 875.15(f) require that the
Director publish a Federal Register notice announcing the receipt of,
and seeking comments on, AML grant applications for non-coal
reclamation projects submitted by a governor of a State or the
equivalent head of an Indian tribe. The grant applications are requests
for funds for the construction of specific public facilities related to
the coal or minerals industry in communities impacted by coal or other
mineral mining and processing practices. Such construction projects are
authorized by section 411(f) of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA) after all coal-related reclamation
objectives have been or are in the process of being completed. For the
reasons set forth below, we are making the OSM Director's (hereinafter
Director) Federal Register notice requirement a discretionary action.
The current regulatory scheme for 30 CFR part 875 provides for a
level of public notice that, in most cases, makes the additional
Federal Register notice of Sec. 875.15(f) redundant. For example,
Sec. 875.13 provides for a public notice of a State or Indian tribe's
certification that it has completed all existing known coal-related
reclamation objectives for eligible lands or waters. Section 875.15(d)
then allows the State or Indian tribe to submit to the Director a grant
application for AML funding of specific non-coal projects. Section
875.15(e) details the information required in the grant application. In
particular, paragraph (e)(7) requires the Director to conduct an
analysis and review of the procedures used by the State or Indian tribe
to notify and involve the public in the funding request and a copy of
all comments received and their resolution by the State or Indian
tribe. The 1994 preamble discussion of the Sec. 875.15(e) grant
information requirements noted that they were intended to assist the
Director in determining whether a ``need'' exists and whether the
public had been ``fully appraised and informed'' of the grant request.
May 31, 1994; 59 FR 28163.
Irrespective of the outcome of the Director's Sec. 875.15(e)
public notice determination, Sec. 875.15(f) next requires that the
Director prepare a Federal Register notice of the State's or Indian
tribe's grant application. Following receipt and evaluation of comments
generated by that Federal Register notice, the Director is to make his/
her decision on the grant application. It is not clear why the 1994
rule required the additional Sec. 875.15(f) Federal Register notice of
the grant application as there was no preamble discussion of this
provision and the enabling statute for Sec. 875.15 does not require
the additional notice. May 31, 1994; 59 FR 28163-4; 30 U.S.C. 1240(a).
Accordingly, we are making the Federal Register notice required by
Sec. 875.15(f) discretionary. We believe that if the Director can
determine from the Sec. 875.15(e)(7) information previously submitted
by the State or Indian tribe in its grant application that the public
has already been ``fully appraised and informed'' of the grant request,
a subsequent Sec. 875.15(f) required Federal Register notice covering
the same ground would not meaningfully add to the Director's decision-
making process. Conversely, if the Director cannot determine from the
(e)(7) information submitted by the State or Indian tribe that the
public has been ``fully appraised and informed'' of the grant request,
the Director should prepare a Sec. 875.15(f) Federal Register notice
of the grant request so as to ensure adequate public notice. This final
rule will give the Director the option of requiring an additional
Federal Register notice dependent on the extent of prior (e)(7) public
notice. This seems to be a reasonable course. It ensures adequate
public notice of the State's or Indian tribe's grant request (with or
without a Federal Register notice) while avoiding the delay and expense
of an unnecessary Federal Register notice. We are, therefore, revising
Sec. 875.15(f) by inserting the words ``if necessary to ensure
adequate public notification.'' The first sentence of Sec. 875.15(f),
with inserts italicized, will read as follows: ``After review of the
information contained in the application, the Director shall, if
necessary to ensure adequate public notification, prepare a Federal
Register notice regarding the State's or Indian tribe's submission and
provide for public comment.''
There are several other practical reasons to reject the current
rule's Sec. 875.15(f) requirement of a Federal Register notice and to
adopt the proposed rule's more flexible approach. The first is that,
since the rule was initially promulgated seven years ago, there have
been no comments submitted in response to any of the required Federal
Register notices published by the Director. This fact was brought to
light as a result of an inquiry from several of the States and Indian
tribes attending the August 2001 AML Conference held in Athens, Ohio,
who questioned the need for the Director's required Sec. 875.15(f)
Federal Register
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notice. We subsequently reviewed our own records and discovered that we
had never received any public comments to the required Sec. 875.15(f)
Federal Register notices. We then polled the 6 eligible AML programs on
the public response to their own subsection (e)(7) public notice
efforts. All of the programs questioned the need for the required Sec.
875.15(f) Federal Register notice and reported a general lack of public
response to their individual (e)(7) public notice efforts. The response
of Wyoming, which is by far the largest of the AML programs certified
under Sec. 875.13 and which has funded thirty-six (36) Sec. 875.15
public facilities projects with AML grant funds, was of particular
note. Although Wyoming's AML program provides for extensive local
public notice and a public hearing on all proposed Sec. 875.15
projects, that State reported that ``even these local opportunities for
comment elicit little if any response from those directly impacted by
the project.'' This consistent lack of local response to local notice
from the Wyoming AML program regarding prospective Sec. 875.15
projects underscores the fact that the current rule's requirement for
additional Federal Register notice, while helpful in theory, has not
produced meaningful public notice and comment.
Our polling of the 6 States and Indian tribes brought to light
additional reasons not to retain the current rule's Federal Register
notice requirement. The Navajo Nation, which has a substantial number
of applications ready for processing as soon as its revised AML plan is
approved, strongly opposes the current rule's required Federal Register
notice because of its own internal AML notice procedures. By tribal
law, the Navajo Nation has had to hold public meetings for each of its
100 or more individual political units whenever AML funds are to be
used anywhere in their tribal boundaries for the construction of public
facilities. The current rule's Sec. 875.15(f) required Federal
Register notice would, therefore, trigger a redundant, time-consuming
round of tribal meetings on the very same projects.
Another reason given by some of the States and Indian tribes for
opposing the continuance of the Sec. 875.15(f) required Federal
Register notice is that, for programs with shorter construction seasons
like those of Montana and Wyoming, the required Federal Register notice
adds 45 to 60 days to the project approval process. These additional 45
to 60 days can push completion of a funded public facility well into
the next construction season.
In light of the above, we are removing the requirement in Sec.
875.15(f) that the Director always publish a Federal Register notice
informing the public of the grant application. Instead, the Director
will retain the option of publishing such notice if his/her analysis
and review of the notice information required under Sec. 875.15(e)(7)
indicates that inadequate procedures were used to notify and involve
the public in the funding request. In this way, we can ensure that the
public has been fully apprised of the grant application while also
being protected from the delay and expense of an unnecessary Federal
Register notice.
Technical Corrections
In addition to the above, we are also revising our regulations at
Sec. Sec. 875.15(d) and (e) to correct errors in four existing cross-
references. In Sec. 875.15(d), we are changing the cross references
from paragraphs (a), (d), and (e) to paragraphs (b), (e), and (f),
respectively. In Sec. 875.15(e), we are changing the cross reference
from paragraph (c) to paragraph (d). These revisions to the cross
references will not result in any substantive changes in the
application of our regulations.
Finally, we have rewritten Sec. 875.15(f) in plain language format
by incorporating numbered paragraphs to make the section more reader
friendly. No substantive changes resulted from using the plain language
format.
II. Discussion of the Public Comments Received
Comments were requested on the proposed rule and a total of two
comments were received. They were from the State of Wyoming's Abandoned
Mine Land Program and the Interstate Mining Compact Commission. Both
commenters supported the proposed revisions. No one requested a public
hearing and none was held.
III. How Will This Rule Affect State and Indian Programs?
Following publication of this final rule, we will evaluate the
State and Indian programs approved under section 405 of SMCRA to
determine any changes in those programs that may be necessary. When we
determine that a particular State program provision should be amended,
the particular State will be notified in accordance with the provisions
of 30 CFR 884.15. We have made a preliminary determination that no
program revisions will be required.
IV. Procedural Matters and Required Determinations
Executive Order 12866--Regulatory Planning and Review
This document is not a significant rule and is not subject to
review by the Office of Management and Budget under Executive Order
12866.
a. This rule will not have an effect of $100 million or more on the
economy. It will not adversely affect in a material way the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or Tribal governments or communities. The
elimination of the mandatory requirement to publish a Federal Register
notice is not expected to have an adverse economic impact on States and
Indian tribes. It may in fact reduce construction costs in northern
climates by eliminating delays.
b. This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
c. This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients.
d. This rule does not raise novel legal or policy issues.
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
As previously stated, the elimination of the requirement for a
mandatory Federal Register notice is not expected to have an adverse
economic impact. Further, the rule produces no adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of United States enterprises to compete with foreign-based
enterprises in domestic or export markets.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to
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compete with foreign-based enterprises for the reasons stated above.
Unfunded Mandates
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
Tribal, or local governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1534) is not required.
Executive Order 12630--Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications.
Executive Order 12612--Federalism
In accordance with Executive Order 12612, the rule does not have
significant Federalism implications to warrant the preparation of a
Federalism Assessment for the reasons discussed above.
Executive Order 12988--Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
As previously stated, 2 tribes will be affected by the rule, the Hopi
Tribe and Navajo Nation. The rule will most likely shorten the
processing time for most grant applications received from the Hopi and
Navajo by eliminating the mandatory requirement to publish a Federal
Register notice whenever we receive a grant application to build a
public facility.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not considered a ``significant energy action'' under
Executive Order 13211. The elimination of the mandatory requirement to
publish a Federal Register notice will not have a significant affect on
the supply, distribution, or use of energy. The elimination of the
mandatory requirement may reduce construction costs in northern
climates by eliminating delays.
Paperwork Reduction Act
This rule does not require an information collection from 10 or
more parties and a submission under the Paperwork Reduction Act to the
Office of Management and Budget is not required.
National Environmental Policy Act
We have reviewed this rule and determined that it is categorically
excluded from the National Environmental Policy Act process in
accordance with the Departmental Manual 516 DM 2, Appendix 1.10.
List of Subjects in 30 CFR Part 875
Grant program--natural resources, Indian lands, Reclamation,
Surface mining, Underground mining.
Dated: January 29, 2003.
Rebecca W. Watson,
Assistant Secretary, Land and Minerals Management.
Accordingly, we are amending 30 CFR part 875 as set forth below.
PART 875--NONCOAL RECLAMATION FUND
1. The authority citation for part 875 constinues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Amend Sec. 875.15 as follows:
a. In paragraph (d), remove the phrases ``paragraph (a),''
``paragraph (d),'' and ``paragraph (e)'' and in their place add
``paragraph (b),'' ``paragraph (e),'' and ``paragraph (f),''
respectively.
b. In paragraph (e), remove the phrase ``paragraph (c)'' and add
``paragraph (d).''
c. Revise paragraph (f) to read as follows:
Sec. 875.15 Reclamation priorities for noncoal program.
* * * * *
(f) After review of the information contained in the application,
the Director will, if necessary to ensure adequate public notification,
prepare a Federal Register notice regarding the State's or Indian
Tribe's submission and provide for public comment. The Director will
then:
(1) Evaluate any comments received;
(2) Determine whether the funding meets the requirements of this
part;
(3) Determine whether the funding is in the best interest of the
State or Indian tribe AML program;
(4) If the determinations under paragraphs (f)(2) and (f)(3) of
this section are positive, approve the request for funding the activity
or construction; and
(5) Approve funding under paragraph (f)(4) of this section only at
a cost commensurate with its benefits towards achieving the purposes of
the Surface Mining Control and Reclamation Act of 1977.
[FR Doc. 03-4647 Filed 2-26-03; 8:45 am]
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