[Federal Register Volume 78, Number 65 (Thursday, April 4, 2013)]
[Proposed Rules]
[Pages 20394-20408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: R1-2013-06950]



[[Page 20393]]

Vol. 78

Thursday,

No. 65

April 4, 2013

Part II





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement





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30 CFR Parts 701, 736, 737 et al.





Cost Recovery for Permit Processing, Administration, and Enforcement; 
Proposed Rule; Republication

Federal Register / Vol. 78 , No. 65 / Thursday, April 4, 2013 / 
Proposed Rules

[[Page 20394]]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 701, 736, 737, 738, and 750

RIN 1029-AC65
[Docket ID OSM-2012-0003]


Cost Recovery for Permit Processing, Administration, and 
Enforcement

Republication

    Editorial Note: FR Doc. 2013-6950 which was originally published 
on pages 18430-18444 in the issue of Tuesday, March 26, 2013 is 
being republished in its entirety in the issue of Thursday, April 4, 
2013 because of editing errors.
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
proposes to revise its Federal and Indian Lands Program regulations for 
the purposes of adjusting the existing permit fees and assessing new 
fees to recover the actual costs for permit review and administration 
and permit enforcement activities provided to the coal industry. These 
fees are authorized under the Surface Mining Control and Reclamation 
Act of 1977 (SMCRA) and the Independent Offices Appropriations Act of 
1952 (IOAA). The fees would be used to offset OSM's costs for 
processing various permit applications and related actions, 
administering those permits over their lifecycle, and performing 
required inspections. The proposed fees would be applicable to permits 
for coal mining on lands under OSM's direct regulatory jurisdiction. 
The proposed fees would also be applicable to coal mining on Indian 
lands where OSM is the regulatory authority. The primary purpose of 
this rulemaking is to charge the surface coal mining and reclamation 
operations that benefit from obtaining and operating under surface coal 
mining and reclamation permits for OSM's costs to review, administer, 
and enforce those permits instead of passing those costs on to the 
general public.

DATES: Electronic or written comments: OSM will accept written comments 
on the proposed rule on or before May 28, 2013. Comments on the 
proposed rule's information collection should be submitted by April 25, 
2013.
    Public hearing: If you wish to testify at a public hearing, you 
must submit a request before 4:30 p.m., Eastern Time, on April 16, 
2013. OSM will hold a public hearing only if there is sufficient 
interest. Hearing arrangements, dates and times, if any, will be 
announced in a subsequent Federal Register notice.

ADDRESSES: Public comments: You may submit comments by any of the 
following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
The proposed rule has been assigned Docket ID: OSM-2012-0003. Please 
follow the on-line instructions for submitting comments.
    <bullet> Mail/Hand-Delivery/Courier: Office of Surface Mining 
Reclamation and Enforcement, Administrative Record, Room 252 SIB, 1951 
Constitution Avenue NW., Washington, DC 20240. Please include the 
Docket ID: OSM-2012-0003.
    You may view the public comments submitted on this rulemaking at 
http://www.regulations.gov. When searching for comments, please use the 
Docket ID: OSM-2012-0003.
    Public hearing: You may submit a request for a public hearing on 
the proposed rule to the person and address specified under FOR FURTHER 
INFORMATION CONTACT. If you require reasonable accommodation to attend 
a public hearing, please contact the person listed under FOR FURTHER 
INFORMATION CONTACT.
    Information Collection: If you are commenting on the information 
collection aspects of this proposed rule, please submit your comments 
to the Office of Management and Budget, Office of Information and 
Regulatory Affairs, Attention: Interior Desk Officer, via email to 
<a href="/cdn-cgi/l/email-protection#eca3a5beadb39f998e81859f9f858382ac83818ec289839cc28b839a"><span class="__cf_email__" data-cfemail="7f30362d3e200c0a1d12160c0c1610113f10121d511a100f51181009">[email protected]</span></a>, or via facsimile to 202-395-5806.

FOR FURTHER INFORMATION CONTACT: Michael F. Kuhns, Office of Surface 
Mining Reclamation and Enforcement, U.S. Department of the Interior, 
1951 Constitution Avenue NW., Room 222, Washington, DC 20240. 
Telephone: 202-208-2860.

SUPPLEMENTARY INFORMATION:
I. Background Information
II. Discussion of the Proposed Rule
    A. General
    B. Processing Fee
    C. Annual Fixed Fee
III. Public Comment Procedures and Information
IV. Procedural Matters and Required Determinations

I. Background Information

Why is OSM revising the regulations?

    In an effort to promote fiscal responsibility, OSM (also referred 
to as ``we'' and ``our'') has undertaken a comprehensive review of the 
costs it takes to run its programs. As part of this assessment, we 
identified the need to update our regulations related to the permit 
application and other fees that we collect from the coal industry to 
reflect our costs more accurately.
    We last promulgated regulations related to fee collections over 20 
years ago, in 1990, 55 FR 29536 (July 19, 1990). Pursuant to those 
regulations, we collect only approximately 2 percent of the costs that 
it takes us to perform permit reviews, and we do not collect any fees, 
other than civil penalties, for our permit administration and 
enforcement costs.
    This rulemaking would allow us to better implement SMCRA and other 
policies and requirements with regard to fees and cost recovery for 
services rendered to regulated industries. Since our last rulemaking, 
the Office of Management and Budget (OMB) has revised Circular No. A-25 
relating to ``fees assessed for Government services and for sale or use 
of Government goods or resources.'' 58 FR 38144 (adopted 1959; revised 
July 15, 1993), available at http://www.whitehouse.gov/omb/circulars_a025. In addition, under the Department of the Interior's (Interior's) 
implementing policy, OSM is required to charge fees for services that 
provide special benefits or privileges to an identifiable non-Federal 
recipient above and beyond those which accrue to the public at large. 
See 330 Departmental Manual 1.3A and Department of the Interior 
Accounting Handbook at 6-4, available at http://www.doi.gov/pfm/handbooks/accounting.html.
    In addition, implementation of this proposed rule would shift a 
significant portion of the financial costs for reviewing, 
administering, and enforcing permits from the general public to the 
identifiable beneficiary--the permit applicant or existing permittee or 
operator.\1\ It would also reduce an indirect taxpayer-funded subsidy 
to applicants, permittees, and operators of surface coal mining and 
reclamation operations within our regulatory jurisdiction because these 
services are currently fully funded through annual discretionary 
appropriations.
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    \1\ The operator of a surface coal mining and reclamation 
operation governed by the initial program regulations is sometimes 
referred to in this preamble as the ``permittee'' and the holder of 
a ``permit,'' despite the lack of the type of permit required under 
the permanent regulatory program. We would intend for these 
operators to be subject to the new cost recovery requirements.
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What laws authorize OSM to collect fees?

    We have specific authority to collect fees in jurisdictions where 
we are the regulatory authority--i.e., States and

[[Page 20395]]

Tribes that have not obtained approval to run their own regulatory 
program. Section 507(a) of SMCRA (30 U.S.C. 1257) states that--

    Each application for a surface coal mining and reclamation 
permit pursuant to an approved State program or a Federal program 
under the provisions of this Act shall be accompanied by a fee as 
determined by the regulatory authority. Such fee may be less than 
but shall not exceed the actual or anticipated cost of reviewing, 
administering, and enforcing such permit issued pursuant to a State 
or Federal program. The regulatory authority may develop procedures 
so as to enable the cost of the fee to be paid over the term of the 
permit.

    This provision applies to all States in which we are the regulatory 
authority: currently Tennessee and Washington. Likewise, pursuant to 
section 710(d) of SMCRA (30 U.S.C. 1300(d)), which refers specifically 
to section 507, we have authority to collect fees on surface coal 
mining operations on Indian lands for which no Tribal regulatory 
program has been approved pursuant to section 710(j) of SMCRA: 
currently, surface coal mining and reclamation operations are located 
on lands of the Crow Tribe, the Hopi Tribe, the Ute Mountain Ute Tribe, 
and the Navajo Nation.
    Additional authority for cost recovery is provided by the 
Independent Offices Appropriations Act of 1952 (IOAA), as amended, 31 
U.S.C. 9701, which provides generally for cost recovery by Federal 
agencies. The IOAA expresses the intent that services provided by 
agencies should be ``self-sustaining to the extent possible,'' 31 
U.S.C. 9701(a), and authorizes agency heads to ``prescribe regulations 
establishing the charge for a service or thing of value provided by the 
agency.'' 31 U.S.C. 9701(b).

What policy documents govern cost recovery or collecting fees?

    Executive Branch policy on cost recovery is set out in OMB Circular 
No. A-25. It establishes Federal policy regarding user charges under 
the IOAA. It also ``provides guidance to agencies regarding their 
assessment of user charges under other statutes.'' In general, section 
6 of the Circular provides: ``A user charge * * * will be assessed 
against each identifiable recipient for special benefits derived from 
Federal activities beyond those received by the general public.'' This 
charge is designed ``to recover the full cost to the Federal Government 
for providing the special benefit, or the market price.'' Interior and 
its bureaus have adopted OMB's policy as set forth in section 6 of 
Circular A-25. See Department of the Interior Accounting Handbook at 
6.4.2.

How did we solicit public participation for the development of the 
rule?

    As part of our comprehensive review, we identified 89 specific 
stakeholders who might be affected by this rule or might have an 
interest in this rule. The stakeholders include coal mining operators, 
environmental groups, government agencies, and municipalities located 
in the States of Tennessee, Washington, and on Indian lands where OSM 
is the regulatory authority. On March 2, 2012, we asked for their 
feedback by sending them an outreach letter that summarized some 
concepts that we were considering regarding the restructuring of our 
permit fees. We received 13 responses from this effort. Nine responses 
came from the coal industry, one was from a Tribal government, one was 
from an environmental organization, and two were from private citizens. 
In general, the coal mining industry objected to any provisions that 
would increase their mining costs. The environmental organization and 
citizens supported the rule, and the Tribal government raised issues 
concerning costs and applicability. We reviewed and considered these 
responses as we developed this proposed rule.
    In addition, OSM considered comments we received through 
consultation and coordination with the impacted Indian Tribal 
governments. This consultation is described in greater detail below in 
the discussion of Executive Order 13175 under IV. Procedural Matters.

How did OSM determine which of its services should be recovered through 
fees?

    Section 507(a) of SMRCA provides the authority to charge fees equal 
to or less than the actual or anticipated costs for reviewing, 
administering, and enforcing surface coal mining and reclamation 
permits. Given this broad authority, we reviewed the specific 
activities and work that we perform with regard to (1) Reviewing, (2) 
administering, and (3) enforcing permits. Included within our permit 
review responsibilities are activities related to the processing of new 
permit applications, requests to modify or revise existing permits, the 
required mid-term review of the permit, permit renewals, and the 
transfer, assignment, or sale of rights to an existing permit. We also 
recognize that there could be irregular, non-routine costs associated 
with applications or other actions that OSM might require in 30 CFR 
Chapter VII now or in the future. Administration of an existing permit 
includes permit file maintenance, the review and analysis of various 
periodic monitoring and inspection reports, as well as verification 
that bond release requirements are met. Our inspections of mine sites 
are included within our permit enforcement activities.
    Once we identified our review, administrative, and enforcement 
services and activities, we analyzed the extent to which the activity 
conveyed a benefit to an identifiable recipient, such as a permit 
applicant or existing permit holder, or to the general public. In 
keeping with Federal cost recovery policy, we are only proposing fees 
for those services and activities that we have identified as conveying 
a benefit to an identifiable recipient.

How did OSM analyze its costs for the services it provides to 
identifiable recipients?

    In October 2009, we began a review of costs associated with 
administering our responsibilities for the Federal Program States 
(currently Washington and Tennessee) and the Indian Lands Programs. To 
facilitate this review and to acquire the best information available, 
we enhanced the level of detail captured in our accounting system by 
adding the name of the State or Tribe and the permit number to many of 
the previously established cost codes. This additional information 
allowed us to more accurately capture the costs for each of the 
activities and services we provided. The new coding structure began to 
be phased-in during April 2010.
    After gathering this information, we then performed a cost analysis 
of various activities and services using the detailed cost data and 
associated accumulated programmatic output data. For example, we 
examined our costs for activities that occur infrequently in connection 
with a given mining operation, such as the review of a permit 
application, as well as for more routine and recurring activities, such 
as those associated with administering and enforcing existing permits 
(regular inspections would be one example). We then analyzed the 
resulting costs, associated cost drivers (i.e., factors that affect the 
cost of a task, such as the number of hours it takes to complete an 
inspection), and the differing costs for the administration of the 
Federal and Indian Land Programs among the regions where OSM is the 
regulatory authority.
    After reviewing this data, we considered various approaches for 
recovering these costs through fees as authorized by SMCRA and the 
IOAA.

[[Page 20396]]

We considered many options, including the recovery of actual costs, 
average costs, and standard costs through a case-by-case or set fee 
rate.

How does the existing rule operate?

    Our existing rule is located at 30 CFR 736.25(d) for Federal 
Program States and 30 CFR 750.25(d) for Indian lands. Under these 
regulations, we only charge a fee on new permit applications, and we do 
not collect a fee for the majority of other permit application and 
review services that we provide to applicants, permittees, and 
operators. This existing fee for permit applications is based on a 
fixed fee schedule, which, in sum, assesses nationwide fees at 
significant stages of the review process for new permit applications. 
Specifically, under the existing regulations, we charge a flat $250 for 
our administrative completeness review, $1,350 for our technical 
review, and $2,000 for our issuance of decisional documents. In 
addition, we currently assess a nationwide declining graduated permit 
application fee based on the acreage of the disturbed area within the 
proposed permit boundaries:

First 1,000 acres--$13.50/acre
Second 1,000 acres--$6.00/acre
Third 1,000 acres--$4.00/acre
Additional acres--$3.00/acre

    As previously stated, the existing fee neither recovers the actual 
costs for our permit review nor addresses the recovery of our ongoing 
permit administration or enforcement services.

III. Discussion of the Proposed Rule

A. General

How are the proposed fees different from the existing fees?

    The proposed rule would overhaul the way we calculate fees for 
permitting activities. In addition to restructuring the fees we charge 
for new permit applications, the proposed rule would include fees for a 
broader range of permitting activities and services. The fee for 
permitting activities would not use a fee schedule but instead would be 
based on actual costs that we would calculate on a case-by-case basis.
    The proposed rule also would establish an annual fixed fee to 
recover a portion of our yearly permit administration and enforcement 
services. The annual fixed fee for each permit would be determined by 
four factors--the geographic region; type of permit operation (i.e., 
whether a permit is for a mine site or support facility); mine site 
acreage; and the required frequency of inspections as determined by the 
permit's phase of bond release or by special situations. Special 
situations consist of operations with atypical inspection requirements, 
such as surface coal mining and reclamation operations governed by the 
initial program regulations or permits that are inactive as defined in 
30 CFR 842.11(c)(2)(iii), which includes sites that have achieved Phase 
II bond release or that are in temporary cessation of mining 
operations. The annual fixed fee would account for the number of 
mandated annual inspections, including the time for review, travel, 
inspection and reporting, as well as indirect costs. As proposed, these 
fees are designed so that OSM would not exceed its actual costs for 
providing review and administration, and engaging in enforcement 
activities and services. Fees would be reviewed and adjusted on a 
periodic basis.

What kind of fees would this rule establish?

    Our proposed rule would eliminate the current fixed fee schedule 
and replace it with (1) a processing fee that is determined on a case-
by-case basis for the review and approval of all permit application 
services and (2) an annual fixed fee, which is designed to recover the 
costs of OSM's recurring permit administration and permit inspection 
services. These fees would cover our activities and services in Federal 
Program States and on Indian lands where OSM is the regulatory 
authority; however, these fees would also be applicable to any lands 
for which OSM becomes the regulatory authority pursuant to an action 
under Part 733 of our regulations (i.e., when OSM takes over all or 
part of a State program).
    Our proposed processing fee rule would be located in a new Part 
737. Under the rule, in Federal Program States and on Indian lands 
where OSM is the regulatory authority, the processing fee would be paid 
by (1) any applicant for a permit to conduct surface coal mining and 
reclamation operations, a permit renewal or revision, a transfer, 
assignment or sale of rights of an existing permit, or any new 
application or action that OSM might require to be submitted in 30 CFR 
Chapter VII as a result of possible future rulemaking, and (2) 
permittees and operators that undergo the required mid-term permit 
review. In addition, these fees would be paid on applications for coal 
exploration permits under 30 CFR 772.12. Fees would not be required for 
notices of intention to explore as described in 30 CFR 772.11 because 
these notices typically require much less processing time than coal 
exploration permits. For services other than notices of intention to 
explore, we would calculate the processing fee for services on a case-
by-case basis by determining our actual costs to process the action.
    Our proposed annual fixed fee would be located in a new Part 738. 
That fee would be paid by any permittee or operator of a surface or 
underground coal mining and reclamation operation. The annual fixed fee 
for each surface coal mining and reclamation operation would be 
determined by four factors--the geographic region; the type of permit 
operation (e.g., whether the site is a mine or a support facility); the 
mine site acreage; and the required frequency of inspection--whether 
the permit is in any phase of bond release or whether any special 
situations exist (as with initial program sites or permits that are 
inactive). The fee would account for the number of mandated inspections 
conducted annually, the variations in inspection hours and travel in 
locations east and west of the 100th meridian west longitude, and 
indirect costs.\2\ Support facilities include preparation plants, 
ancillary facilities (such as haul roads), refuse and/or impoundment 
sites, loading facilities and/or tipples, and stockpiles. We also 
recognize that we still administer some surface coal mining and 
reclamation operations under the initial program regulations, and that 
these surface coal mining and reclamation operations have different 
inspection requirements; therefore, we are providing a separate 
category of annual fixed fees for those permits. OSM estimates 10 
active surface coal mining and reclamation operations fall into this 
category.
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    \2\ SMCRA relies on the 100th meridian west longitudinal line to 
represent the boundary between the moist eastern United States and 
the arid western United States. See, e.g., SMCRA, 30 U.S.C. 
1260(b)(5) & 1277(a).
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What happens if OSM substitutes direct federal enforcement or withdraws 
approval of all or part of a State program?

    Pursuant to 30 CFR 733.12, if the Director determines that (1) the 
State has failed to effectively implement, administer, maintain, or 
enforce all or part of its approved State program, and (2) the State 
has not demonstrated its capability and intent to administer the State 
program, the Director can:

    a. Substitute direct federal enforcement for all or a portion of 
a State program pursuant to Sec.  733.12(g); or
    b. Withdraw approval of all or part of a State program and 
implement a replacement Federal program pursuant to Sec.  733.12(h).

    In the event that OSM does substitute direct federal enforcement or 
withdraws

[[Page 20397]]

approval of all or a portion of a State program, all applicants, 
operators, and permittees in that State would be required to pay fees 
covering our expenses for processing applications and performing other 
actions. In other words, the applicants, operators, and permittees 
would be responsible for the same costs as any proposed or actual 
surface coal mining and reclamation operation located within any other 
Federal Program State or on Indian lands where OSM is the regulatory 
authority. The collection of this proposed fee would cover the cost of 
services provided by OSM associated with assuming the responsibilities 
of all or a portion of a State program.
    Because OSM can take over part of a State program under Sec.  
733.12, OSM's new role might consist only of performing a few 
activities that would be subject to cost recovery under the proposed 
regulation. For instance, OSM might assume only the bond calculation 
function of a State program. In that case, we would calculate the 
amount of the bond at the required times in the life of your permit and 
recover from the applicant or operator the cost of doing so. Under such 
a scenario, the State regulatory authority would continue to perform 
all the other permitting activities. In that case, we would charge you 
processing fees to cover our actual costs of performing the bond 
calculation review. We would only charge you an annual fixed fee if we 
were to assume the inspection and enforcement activity for a particular 
regulatory authority.

How did OSM determine the proposed fee structures?

    First, we examined SMCRA section 507(a) and other relevant statutes 
and guidance documents to determine the parameters of our authority to 
collect fees. Our overall goals are to establish fees that would be 
fair and equitable, would not exceed our actual costs, and would 
minimize the administrative burden associated with billing and 
collecting the fees.
    Second, in order to develop the proposed fee structures, we 
reviewed the three permit-related components for which the applicant, 
permittee, or operator receives a benefit or service unique to the 
operation (i.e., permit review, permit administration, and permit 
enforcement), and classified them either as activities and services 
with variable costs based on the circumstances, or activities and 
services that are similar and routine. In particular, we determined 
that permit application processing and other similar review activities 
often occur infrequently in connection with any given operation and 
that the time required for reviewing these activities varies. For 
example, although every new surface coal mining and reclamation 
operation requires a permit, the review times and associated processing 
costs for applications for a new permit vary widely depending on 
factors such as the size of the mine, potential environmental impacts, 
complexity of the proposed action, mining method, site topography and 
hydrology, and the completeness and accuracy of the application itself. 
Other than mid-term permit reviews, these activities are usually 
triggered by the applicant or permit holder. Mid-term reviews and 
permit revisions and renewals are similarly very site specific and vary 
significantly in the amount of time it takes to process them. In 
addition, permit revision applications can be submitted during either 
the active mining phase or the reclamation phase, which affects our 
processing costs. In contrast, some activities and services, such as 
performing the review and analysis of various monitoring reports, file 
maintenance and conducting inspections of the permitted mine site, are 
regular, routine activities and services. Our work relative to these 
activities and services largely correlates to the number of required 
inspections we conduct each year, the geographic region, the type of 
operation we are inspecting, and the permitted acreage.
    Based on this analysis, we are proposing an actual cost, case-by-
case processing fee for the activities that occur only occasionally and 
that vary significantly in the amount of review required and a 
recurring annual fixed fee for activities that are routine and have 
similar costs. We believe that this approach would recover the greatest 
percentage of our review, administrative, and enforcement costs while 
minimizing our administrative burden. This approach also ensures that 
the fees do not exceed the actual cost of our work, which is expressly 
prohibited by SMCRA.

What OSM costs would be recovered by the proposed processing fee?

    We have calculated the proposed fee rates to include the sum of our 
direct and indirect costs related to the activities covered in proposed 
Sec.  736.25. Direct costs are comprised of the time spent by the 
employee or employees who process the permit and other expenses such as 
travel and supplies necessary for carrying out each step of an 
application. The hourly cost of the employees' time is based on the 
employees' salaries and benefits. The cost of travel includes travel 
associated with field work and site visits for technical and 
programmatic review of applications. Direct costs would vary by permit 
because of differences in the technical complexity and skill 
requirements of personnel reviewing permits.
    Indirect costs include all expenses that are common to all 
regulation and technology activities and are assessed at the same rate 
in all cases. These costs include centrally paid items such as 
telecommunications, rent, utilities, security, as well as bureau 
support functions such as human resource services, finance, and 
management. We used the general guidance contained on OMB Circular A-25 
for determining the activities to include in our indirect cost rate.

Will there be penalties if the processing or annual fixed fee is not 
paid on time?

    Yes. Under proposed Sec. Sec.  737.18 and 738.14, if the applicant, 
permittee, or operator does not pay the fees by the due date specified 
in parts 737 and 738, respectively, we would use our authority under 
the Debt Collection Act, as amended, (31 U.S.C. 3717) to charge 
interest, penalties, and administrative costs related to our fee 
collection activities.
    In addition, if the annual fixed fee is not paid by the dates 
specified in parts 737 and 738, we might also exercise our enforcement 
authority under parts 843, 845, and 846, which would generally result 
in the issuance of a notice of violation under Sec.  843.12. If the 
processing fee is not paid by the date specified in Sec.  737.14, as 
discussed below, we would suspend processing the application or other 
action until we receive the fee unless doing so would delay corrective 
action at the site.
    If you are delinquent in paying your annual fixed fee or processing 
fee, under the proposed rule, we might enter this violation into the 
Applicant/Violator System (AVS). As reflected in the proposed addition 
of paragraph (vi) to the definition of ``violation'' contained in 30 
CFR 701.5, a violation in the context of permit application information 
or permit eligibility requirements of sections 507 and 510(c) of the 
Act could include the failure to pay the required processing or annual 
fixed fee. Such a violation in the AVS might cause the violator and 
associated parties to be ineligible for future permit actions, 
including being ineligible to receive AML reclamation contracts, under 
30 CFR 773.12 and coordinating state regulatory counterparts. Section 
510(c) of SMCRA precludes permitting authorities from issuing a permit 
to an

[[Page 20398]]

applicant that owns or controls a mining operation with a current 
violation.

Could the proposed OSM consolidation with the Bureau of Land Management 
and the Office of Natural Resources Revenue affect this rule?

    The Department of the Interior is in the beginning phases of 
consolidating certain fee collection functions between OSM and the 
Office of Natural Resources Revenue (ONRR). See Secretary of the 
Interior Ken Salazar's Secretarial Order No. 3320, signed on April 13, 
2012. We do not expect the consolidation efforts between OSM, ONRR, and 
the Bureau of Land Management to affect the substance of this 
rulemaking; however, it is possible that, at some point, certain 
procedural sections of the rule (i.e., the provisions governing where 
the fees contained in this rule would need to be sent) might be revised 
to reflect the ongoing consolidation efforts.
B. Processing Fee

For what services or actions would OSM assess a processing fee?

    Under the proposed rule at Sec.  736.25(a), OSM would charge a 
processing fee for the following activities in a Federal Program State 
or on Indian lands where OSM is the regulatory authority:
    1. A new permit application to conduct surface coal mining and 
reclamation operations, including coal exploration permits (but 
excluding notices of intention to explore);
    2. A revision to an existing permit, whether requested by the 
permittee or ordered by OSM;
    3. A request to transfer, assign or sell rights to an existing 
permit;
    4. A mid-term review;
    5. A request to renew a permit; and
    6. With the exception of bond release applications, any other 
action on which OSM may assess fees as specified in 30 CFR Chapter VII.
    The processing fee would be charged for the application review 
costs that we incur, even if a permit application is ultimately denied.
    We are not proposing to charge a processing fee for bond release 
applications because a substantial amount of the review time for these 
applications consists of inspection of the onsite mine permit 
conditions and many of these inspection hours overlap with the required 
inspections that are part of the annual fixed fee.
    We foresee the possibility that future rulemaking could require the 
submission of other applications or actions for us to process. If we do 
propose such future rulemaking that requires us to process new actions, 
we would discuss in the preamble whether it should be subject to a 
processing fee.

Would the applicant know the amount of processing fee at the time the 
application is submitted?

    As described in proposed Sec.  737.11(a), we would provide the 
applicant with a written estimate of the proposed fee and an estimated 
processing time before we begin to process the application or other 
permitting action.

Would the permittee or operator know the amount of processing fee at 
the time the mid-term permit review is started?

    Under proposed Sec.  737.11, we would notify you, the permittee or 
operator, of the estimated costs of your mid-term permit review when we 
are required to begin that review.

How would OSM estimate your processing fee?

    First, OSM would estimate the direct costs of processing your 
application or other action based on our known range of costs for 
reviewing various permitting activities. To produce this estimate, we 
would perform a cursory review of your application or other action to 
determine its scope and complexity when we receive your application or 
when your mid-term review is required. Next, we would determine the 
type of staff needed to review and act upon your application or other 
action. Using our most recent data for processing similar applications 
or other actions, we would estimate the number of hours that we expect 
it would take us to complete the review. We would break down this 
estimate by discipline (i.e., hydrologist, engineer, reclamation 
specialist, etc.) and assign corresponding hourly rate costs. We would 
also include any estimated travel costs that we would incur in visiting 
the permit application site to verify the site conditions or meet with 
others about the permit application or mid-term review.
    The cost estimate would not include any costs associated with our 
attending any interagency pre-application meetings because we view 
these meetings as beneficial and time-saving to everybody, including 
the general public, who is involved in the process. Similarly, we would 
not include the costs of estimating the processing fee in developing 
our estimate of your processing fee.
    As described above, a bureau-wide flat indirect cost rate was 
calculated based upon our total direct costs for regulatory activities. 
After we determine the estimated direct costs to process your 
application or conduct a mid-term review, we would use this figure and 
apply the indirect cost rate to arrive at your estimated processing 
fee. We would use this estimate for billing purposes. As we move 
forward in reviewing your application or conducting our mid-term 
review, we would re-calculate our costs and periodically provide you 
with an updated estimate.

What indirect costs are included in the processing fee?

    We used the general guidance contained on OMB Circular A-25 for 
determining the indirect costs that are applied to our direct costs. 
Indirect costs include centrally paid items such as telecommunications, 
rent, utilities, security, as well as bureau support functions such as 
human resource services, finance, and management. OSM used a cost 
estimation methodology based on activities identified in its Work 
Breakdown Structure (WBS) System. WBS provides reasonable managerial 
accounts for costs. We used Fiscal Year 2011 as the baseline year for 
this rate. We applied the indirect costs identified above to total 
regulation and technology costs for the fiscal year yielding a rate of 
21 percent. We intend to periodically adjust our indirect cost rate 
fees to reflect changes in our indirect costs. We would publish this 
revised rate in the Federal Register.

Would the proposed processing fee change how Environmental Impact 
Statements (EISs) and Environmental Assessments (EAs) are handled by 
OSM?

    We would continue our general practice of hiring a consultant to 
prepare an EIS when one is required for your permit application, and 
the consultant would continue to bill you, the applicant, directly. 
However, the costs for OSM's staff time associated with this activity 
would be included in our new processing fee. When OSM prepares an EA 
for your permit activity, which might also include the preparation of a 
finding of no significant impact, we would bill you for our actual 
costs to produce these documents.

How would processing fees be billed?

    Upon receiving the estimate, pursuant to proposed Sec.  737.13, the 
applicant, permittee, or operator would have the option to submit the 
estimated fee in total or to submit a partial payment if the processing 
time is estimated to be more than six months. Applicants, permittees, 
and operators paying the full amount would have to do so within 30

[[Page 20399]]

days of the printed date of our estimate under proposed Sec.  737.14. 
Proposed Sec.  737.14 also details when payments would be due from 
applicants, permittees, and operators choosing the partial payment 
method. Generally, under this proposed provision, the first installment 
would be due within 30 days of the estimate and each additional 
installment would be billed every six months thereafter.
    As detailed in proposed Sec.  737.13(b), the amount of the partial 
payment would be calculated by dividing the total estimated fee amount 
by the number of six-month periods estimated for our processing. Under 
proposed Sec.  737.16, we would generally revise the estimates every 
six months and incorporate any adjustments into the next six-month 
billing. Thus, if a payment turns out to be more or less than our 
processing costs for that same period, the adjustment would be 
reflected in a subsequent billing cycle.
    Except for mid-term reviews, processing would not normally begin on 
your permit application or other action until we receive your first 
installment. Regardless of whether the fee is paid in a lump sum or 
installments, proposed Sec.  737.14(c) makes clear that the entire fee 
would have to be paid before we would issue the final decision document 
unless the fee is for a permit revision that is necessary to correct a 
violation. According to proposed Sec.  737.18(a), we might begin 
processing any permit revisions that are required to correct a 
violation before we receive payment. This exception was added because 
we do not want to delay corrective action by the permittees.

What happens if the processing fee estimate is more or less than actual 
processing costs?

    We intend for your final processing fee to reflect our actual costs 
of performing the review and preparing a decision document regarding 
the permit application (or other action listed in proposed Sec.  
736.25(a)). You would not be expected to pay more than our actual 
costs. To make sure that you do not pay more than the costs that we 
actually incur to process your application or other action, we would 
record our actual costs in our financial system. Our financial system 
would allow us to capture unique cost accounts that would be 
established for each unique permitting action. These cost accounts 
would reflect our direct labor and non-labor costs (if applicable).
    We would reconcile our estimated costs and actual costs pursuant to 
proposed Sec.  737.16. If you are paying by installments, we would 
adjust a subsequent installment to make up the difference between the 
estimated and actual costs. Once the final amount has been paid and the 
decision document issued, if our estimate was greater than our actual 
processing costs, we propose to refund the excess amount to you, 
without interest. If our estimate was less than our actual processing 
costs, we would bill you for the difference; however, we would have to 
receive your payment before the issuance of the final decision 
document.
    Instead of issuing automatic refunds of any amount in excess of our 
processing costs, we considered retaining the overage and applying it 
to future annual fixed fee or other processing fee costs. However, 
current guidance from the Department of the Treasury requires us to 
refund all excess monies to which OSM has no claim. For that reason, 
and in the interest of administrative efficiency, we decided to propose 
the automatic refund.

Would these new regulations increase the time required to obtain or 
revise a permit or other action?

    We are sensitive to concerns about the creation of regulations that 
might extend the time required to obtain or revise a permit or review 
another action, and we have drafted this proposed rule to include only 
one new process--the cost estimate and billing process. We anticipate 
the amount of time required for this process would be minimal. OSM 
staff is already required to track the time they spend on specific 
categories of work; thus, we have a good basis for providing cost 
estimates for different activities and services. Therefore, we do not 
believe this regulation would materially increase the amount of time it 
would take us to review a permit application or other action, assuming 
the processing fees are paid in a timely manner. Moreover, we believe 
that this proposed regulation might encourage the submission of more 
complete and accurate applications packages, which could have the 
effect of decreasing the amount of time we need for review and the 
associated cost.

How would the processing fee be applied to services and actions that 
osm is already reviewing?

    At this time OSM has not determined how best to apply the 
processing fee to applications pending review at the time the proposed 
rule is finalized. We do not want this rulemaking effort to encourage 
applicants to submit incomplete or hastily prepared applications before 
the effective date of the final rule in order to avoid the new 
processing fees.
    Although not specifically reflected in the proposed rule text, we 
are considering adding language to the final rule that would waive the 
proposed processing fee for applications for (1) all activities other 
than new surface coal mining and reclamation operations, permit 
renewals, and significant permit revisions that are received by OSM 
prior to the effective date of the final rule; and (2) new surface coal 
mining and reclamation operations, permit renewals, and significant 
permit revisions that are received by OSM prior to the effective date 
of the final rule and determined by OSM to be both administratively and 
technically complete at the time of submission. Applications for all of 
these activities received after the effective date of this rule, those 
applications that do not meet the conditions above, and mid-term 
reviews that are required after the effective date would be subject to 
the new processing fee.
    We are considering making this distinction because permit 
applications for new surface coal mining and reclamation operations 
typically require substantially more hours of review than all other 
types of permit applications, and it is important for the applications 
for those activities to be technically complete before we can 
meaningfully review the application. If we adopt this approach, 
applicants that satisfy the criteria for waiver of the new processing 
fees for these activities would still be required to pay some fees, 
such as an application fee based on the existing regulations, and the 
annual fixed fee. These applicants would also be required to pay 
processing fees under the new regulations for any future applications.
    We would like your comments about this proposed approach or other 
ideas about how the revised fee structure should apply to permit 
applications already submitted.
C. Annual Fixed Fee

For what services would osm assess an annual fixed fee?

    As previously noted, under Sec.  736.27 and Part 738, we propose to 
recover our costs for permit administration and permit enforcement 
through an annual fixed fee, which would be assessed yearly. When 
certain services are performed repeatedly and as expected, a fixed fee 
is a good mechanism for recovering those costs and is administratively 
efficient. When we assessed our work, we noted that inspections are one 
type of routine service that we provide because the minimum number and 
types of inspections for assessing compliance of

[[Page 20400]]

permits are set by regulation. Based on an analysis of the records of 
previous inspections, we were able to ascertain that certain factors, 
such as the type of inspections (full or partial), the geographic area, 
and size of the mine site or support facility, all contribute to the 
length of time per inspection. In other words, we noticed that mines of 
similar size and similar geography require approximately the same 
amount of time to complete a particular type of inspection. Because of 
the predictable nature of inspections, we believe a fixed fee is 
appropriate. This approach is consistent with section 507(a) of SMCRA, 
which specifically authorizes us to collect fees for administrative and 
enforcement costs and allows these costs to be paid over the term of 
the permit. We anticipate the collection of this fee would help us 
recover a portion of our activity and service costs related to permit 
maintenance, permit administration, and permit inspection.

How would I know how much my annual fixed fee would be?

    We have determined that a one-size-fits-all annual fee is 
impracticable because our costs to administer and enforce permits can 
vary due to a number of factors--primarily related to geography, the 
permit acreage for mining operations or permit type for nonmining 
operations (i.e., a support facility), the phase of bond release, if 
any; and special situations (such as operations governed by the initial 
program regulations and permits that are inactive). Thus, in Sec.  
738.11(b), we are proposing a table that sets different rates for 
surface coal mining and reclamation operations based on those factors. 
Operators should be able to identify their annual fixed fee by 
consulting this table.
    We believe that this table fairly represents our fixed costs for 
administering and enforcing these permits because our recurring 
inspection and other maintenance activity costs are directly related to 
statutory and regulatory requirements that specify criteria for 
inspection frequency. For instance, we are required to complete no 
fewer than four (4) complete and eight (8) partial inspections each 
year on permits that have not achieved Phase II bond release. However, 
once a permit achieves Phase II bond release, the frequency of mandated 
inspections is reduced to four (4) complete inspections annually. The 
lower annual fixed fee rate for permits that have achieved Phase II 
bond release acknowledges this reduction in our administrative and 
enforcement costs. Likewise, for permits that are inactive or operating 
under the initial program regulations, and which have different 
inspection requirements, the table identifies a separate rate. We would 
not collect annual fixed fees on any permit sites that have been fully 
reclaimed as evidenced by Phase III bond release certification.

How did OSM determine the annual fixed fee rates proposed in the table 
in Sec.  738.11(b)?

    We collected data on the direct historical costs for permit 
administration and permit enforcement activities and services that are 
captured in our accounting system related to permit maintenance, permit 
administration, and permit inspection. We then assigned these costs to 
the appropriate inspections in Tennessee, Washington State, and on 
Indian lands for sites that were not in a forfeited or abandoned 
status. As discussed above, we also treat sites that are inactive, are 
governed by our initial program regulations, or have achieved Phase II 
bond release differently by applying lower fees to reflect a reduction 
in costs from a reduced number of inspections.
    In setting the annual fixed fees, we excluded costs associated with 
conducting citizen complaint inspections because we recognize these 
inspections vary widely in frequency and scope and do not lend 
themselves to an annual fixed fee. We also excluded costs associated 
with taking enforcement actions, such as the issuance of a cessation 
order or a notice of violation, because these are not recurring actions 
but instead occur only in connection with specific permits where a 
problem is encountered.
    We initially considered basing the annual fixed fee solely on the 
amount of bonded or disturbed acreage, but rejected that method after a 
thorough analysis of our costs and of some of the outreach comments we 
received. To ensure that we would not recover more than our actual 
costs on any individual permit, we are using a conservative annual 
fixed fee based on the geographic region, acreage, and type of 
permitted operation (i.e., mining operation or support facility), and 
stage of bond release. A permit that achieves Phase II bond release 
would be eligible for the reduced annual fee rate once it has been in 
this new phase status for an entire billing cycle. Similarly, a permit 
that achieves Phase III bond release would no longer have to pay an 
annual fee. We would notify the Division of Financial Management when a 
permit becomes inactive or when the appropriate bond release occurs. An 
adjustment to the annual fixed fee or a refund would be made as 
described in proposed Sec.  738.15.
    After determining the base figure for our direct costs, we then 
applied a 21 percent indirect rate to that base figure in order to 
arrive at the final annual fixed fee rates proposed in Sec.  738.11(b). 
A discussion of the indirect cost rate can be found in the section 
above regarding the processing fee.

What cost methodology did OSM use to determine its direct costs for the 
annual fixed fees?

    The proposed rates for the annual fixed fees are based upon the 
costs that OSM incurs annually for activities directly associated with 
ongoing permit administration and enforcement. We considered several 
methods for establishing a proposed fee to recoup our annual costs to 
administer and enforce permits for surface coal mining and reclamation 
operations. First, we considered proposing a flat annual fixed fee for 
all permits, regardless of the characteristics of the surface coal 
mining and reclamation operation (such as location, size, or phase of 
bond release); however, we determined that such an approach would be 
inappropriate given that costs vary substantially across permitted 
sites. So, we decided to set fees based on several criteria because we 
recognize that our administrative and enforcement expenses vary as we 
regulate permitted sites ranging from large surface mines spanning tens 
of thousands of acres down to small permitted units, such as an 
ancillary haul road facilitating nearby mining operations. We also 
considered proposing a simple acreage fee but determined that, given 
the wide array of permitted sites across geographical areas, such a fee 
would not be equitable. Eventually, we settled on the proposed method, 
which explicitly recognizes differences in surface coal mining and 
reclamation operations based on site attributes, size, and reclamation 
status of permitted sites.
    We then analyzed data to link the site categories to costs. OSM 
maintains an agency-wide database to record, among other things, the 
inspection and enforcement time for conducting federal inspections in 
States and Tribes. Upon review of this data, we determined that a good 
indicator of our costs to administer and enforce the permits was the 
time expended by OSM inspectors to service permits annually. We were 
able to pull information from our database to review our inspectors' 
time for each activity necessary to implement the Federal and Indian 
lands program in non-primacy States and Tribes. We specifically looked 
at the time it takes

[[Page 20401]]

for each inspection to: (1) Review the permit; (2) travel to and from 
the site; (3) inspect the site; and (4) write the report. Our 
inspectors use standardized forms to record mining status and 
reclamation phases, acres of the permitted site, permit type (permanent 
program or interim site), type of mine (surface or underground), 
facility type (prep plant, haul road, refuse, loading facility, or 
stockpiles), and inspection type (complete or partial).
    We also sorted all permits in Federal Program States and on Indian 
lands where OSM is the regulatory authority into six physical 
categories (described below) and four inspection groups (permits 
without Phase II bond release, permits with Phase II bond release, 
inactive permits, and initial program operations) based on the minimum 
required inspection frequency. The physical categories include support 
facilities and five categories based on ranges of permitted acreage--
mines less than 100 acres, mines 100 acres but less than 1,000 acres, 
mines 1,000 acres but less than 10,000 acres, mines 10,000 acres but 
less than 20,000 acres, and mines 20,000 acres or greater. The range of 
site categories reflects the required hours per inspection which varies 
substantially between mine types due to the size and complexity of 
mines in each geographical area. For example, partial inspections 
require nearly twice as much time in Tennessee as similar sized mine 
sites west of the 100th meridian west longitude. Mine sites above 
10,000 acres do not exist in areas east of the 100th meridian, while 
some mines exceed 60,000 acres in areas west of the 100th meridian west 
longitude. Another physical category is the location of the permit or 
operation, specifically if it is located east or west of the 100th 
meridian west longitude. The underground mine acreages we considered 
consist only of surface acreage, rather than the affected subsurface 
``shadow area,'' which is often larger than the surface footprint. All 
of the existent active underground mines presently fall into the 
category of mines less than 100 acres. Inspection frequency groups 
include permits requiring 12 inspections, permits requiring 4 complete 
inspections (for permits achieving Phase II bond release and for 
inactive permits), and those requiring only 2 complete inspections 
(initial program sites).
    For each physical category, we calculated inspection time for both 
complete and partial inspections using a statistical mean for 
inspection times for both complete and partial inspections. We 
recognize that inspection times on a site might vary for a given year 
due to the various circumstances of a mining operation or reclamation 
process, so we took a three-year average (2009-2011) of hours per 
inspection to better represent the time requirements for inspections 
performed in each category.
    Averages were statistically different across the physical 
categories. For example, complete inspections in Tennessee for the 
three ascending acreage categories required 5 hours, 11 hours, and 47 
hours respectively, while partial inspections for the same acreage 
categories required 4 hours, 6 hours, and 10 hours respectively. We 
considered creating subcategories within each broad physical category, 
but deemed such a division unnecessary because there was a lack of 
significant difference in the statistics. For example, the estimated 
time required to service permits with permitted acreages falling 
between 800 and 1,000 acres was not statistically higher than permits 
with acreages falling between 600 and 800 acres. Thus, we determined 
that five broad acreage categories were appropriate based on 
statistical differences in total hours expended for inspecting the 
entirety of each permitted site.
    Next, using OSM's inspection and enforcement database to determine 
the time required to administer and enforce each of the categories, we 
established annual cost estimates for servicing each of these 
categories of permits. SMCRA requires a minimum number of annual 
inspections, and we used this minimum number to calculate the total 
hours needed to maintain a permit annually, even though OSM would 
sometimes perform more than the minimum number of inspections on an 
individual permit. As an example, our data revealed that at a minimum, 
for an active mine in Tennessee with 600 permitted acres (category 2), 
we require 92 inspection hours (11 hours for each complete inspection 
multiplied by 4 complete inspections annually plus 6 hours for each 
partial inspection multiplied by 8 partial inspections annually). When 
the minimum number of inspections drops once a mine has obtained Phase 
II bond release, the number of inspection hours required would drop to 
44 hours (11 hours multiplied by 4 complete inspections annually). We 
decided not to include costs associated with time expended due to 
enforcement actions, such as follow-up inspections for assessing civil 
penalties and reviewing notices of violation. These costs are 
unanticipated and specific to an individual permit, and therefore are 
not appropriate for inclusion in the annual fixed fee, which is 
designed to cover our predictable and recurring costs.
    Once we determined the number of required inspection hours, we 
could multiply that figure by the standard hourly rate for an 
inspector's salary and benefits and average annual travel costs to 
perform the required inspections. This sum gives us the direct costs 
for administration and enforcement for the various categories reflected 
in proposed Sec.  738.11(b). We then applied an indirect cost of 21 
percent for all geographical areas to determine the annual permit fee. 
We applied the same nationwide indirect fee rate as previously 
described in the processing fee section of the SUPPLEMENTARY 
INFORMATION, Discussion of The Proposed Rule. Thus, the table in Sec.  
738.11(b) includes both our direct and indirect costs.

How would annual fixed fees be billed?

    The annual fixed fee would be billed in advance for our permit 
administration and enforcement costs. For new permits issued after the 
effective date of this rule, we propose to send you a prorated bill for 
the period beginning when the permit is issued through the end of the 
current fiscal year (September 30) as described in Sec.  738.11(a). For 
permits already issued prior to the effective date of this rule, we 
propose to send you a prorated bill for the period beginning when the 
rule becomes effective through the end of the current fiscal year 
(September 30) as described in Sec.  738.11(a). Because initial program 
sites, inactive permits, and permits that have achieved Phase 2 bond 
release require only two complete annual inspections, their prorated 
amount would be determined by the timing of our inspections rather than 
the remaining months in the billing year. We would then annually bill 
you each year thereafter at the start of each new fiscal year (October 
1). However, we recognize that there are many options for billing that 
might be more or less convenient for our permittees, such as billing at 
the beginning of the calendar year. Alternatively, we could bill on a 
quarterly basis (similar to the current AML fee) or a semi-annual 
basis. We specifically invite comments as regarding the billing 
procedures for the annual fixed fee.

What happens if my permit becomes eligible for a reduced annual fixed 
fee rate during the year?

    You would have to pay the annual fixed fee in advance for the next 
12 months. However, if your operation achieves a phase of bond release 
or becomes inactive during the year, you might be eligible for a 
reduced annual

[[Page 20402]]

fixed fee. If the event that makes your permit eligible for a reduced 
fee occurs within the first 6 months of the billing year, we would 
refund a prorated portion of your annual fixed fee, without interest, 
as proposed in Sec.  738.15.

Would the annual fixed fees be updated or revised?

    Yes. Under proposed Sec.  738.11(c), we intend to periodically 
adjust our annual fixed fee to reflect changes in our direct costs and/
or indirect rate. We would publish all such revised fees in the Federal 
Register.

III. Public Comment Procedures and Information

How do I submit comments on the proposed rule?

General Guidance
    We will review and consider all comments that are timely received, 
but the most helpful comments and the ones most likely to influence the 
final rule are those that include citations to and analyses of SMCRA, 
its legislative history, its implementing regulations, case law, other 
pertinent Federal laws or regulations, technical literature or other 
relevant publications, or that involve personal experience. Your 
comments should reference a specific portion of the proposed rule or 
preamble, be confined to issues pertinent to the proposed rule, explain 
the reason for any recommended change or objection, and include 
supporting data when appropriate.
    Please include the Docket ID ``OSM-2012-0003'' at the beginning of 
all written comments that are mailed or hand carried to OSM. We will 
log all comments that are received prior to the close of the comment 
period into the docket for this rulemaking; however, we cannot ensure 
that comments received after the close of the comment period (see 
DATES) or at locations other than those listed above (see ADDRESSES) 
will be included in the docket for this rulemaking or considered in the 
development of a final rule.
    Procedures for sending comments to the Office of Management and 
Budget are described in the Paperwork Reduction Act section of the 
Procedural Matters.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Public Hearing and Teleconferences

    We will hold a public hearing on the proposed rule only if there is 
sufficient interest. We will announce the time, date, and address for 
any hearing in the Federal Register at least 7 days before the hearing. 
If there is only limited interest in a public hearing, we may hold a 
teleconference instead and invite those who had expressed an interest 
in presenting oral comments. We will place a summary of the public 
hearing or teleconference, if held, in the docket for this rulemaking.
    If you wish to testify at a hearing please contact the person 
listed under FOR FURTHER INFORMATION CONTACT, either orally or in 
writing, by 4:30 p.m., Eastern Time, on April 16, 2013. If there is 
only limited interest in speaking at a hearing by that date, we will 
not hold a hearing and may, instead, offer to hold a teleconference.

IV. Procedural Matters

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to 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. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.
    The revisions to the existing fee schedule are intended to offset 
OSM's costs for processing various permit applications and related 
actions, administering those permits over their lifecycle as well as 
the costs associated with providing enforcement of the permits. The 
proposed fees would be applicable to permits for mining on lands where 
regulatory jurisdiction has not been delegated to the States. The 
proposed fees would also be applicable to mining on Indian lands where 
OSM is the regulatory authority. The primary purpose of this rulemaking 
is to charge the costs to review, administer, and enforce surface coal 
mining and reclamation permits to those who benefit from obtaining and 
operating under the permit, rather than the general public.
    The proposed revisions would result in an increase in the costs 
placed on coal operators mining in Federal Program States (Tennessee 
and Washington) and on Indian lands where OSM is the regulatory 
authority. Within the Federal and Indian lands programs, we currently 
issue approximately 200 permitting actions per year with less than 5% 
currently subject to a fee. We also have inspection and permit 
administration responsibilities for over 300 permits that include over 
120,000 bonded acres. For all of these activities, the total amount we 
currently collect averages $40,000 per year under the existing fee 
structure. The fees under the proposed rule would recover a large 
portion of the annual $3.1 million for permitting and inspection costs 
currently being incurred by OSM and paid using appropriated 
(discretionary) funds to finance these activities.

Regulatory Flexibility Act

    There are approximately 1086 surface coal mining and reclamation 
operations in the United States. This rulemaking would only affect the 
surface coal mining and reclamation operations located in Tennessee, 
Washington and on Indian lands, which we estimate to be 41 companies--
25 active surface coal mining operations and 16 reclamation operations.
    The Small Business Administration uses the North American Industry 
Classification System Codes to establish size standards for small 
businesses in the coal mining industry. The size standard established 
for coal mining is 500 employees or less for each business concern and 
associated affiliates. The Mine Safety and Health Administration 
indicates that small coal-mining firms comprise over 96% of the 1086 
coal-mining firms in the United States. For purposes of this proposed 
rule, we are estimating that all 41 surface coal mining and reclamation 
operations impacted by this rule would qualify as small business 
entities. The actual dollar effect upon each operator would be highly 
variable and depend upon the number of permitting actions that each

[[Page 20403]]

operator requests, the geographic region, the size and type of the 
mining operation, and the phase of bond release. Although this number 
is variable, we have included rough estimates of the minimum and 
maximum processing fees under the Paperwork Reduction Act section 
below. In addition, the annual fixed fees range from roughly $700 for 
an initial program site with less than 100 acres in the East to roughly 
$96,000 for a surface coal mining operation with more than 20,000 acres 
and without Phase II Bond Release in the West. See proposed 30 CFR 
738.11(b).
    The Department of the Interior certifies that this rule would not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
This conclusion is based on the small number of surface coal mining and 
reclamation operators affected by the proposed rule--approximately 4 
percent of small surface coal mining and reclamation operations in the 
United States--and the graduated fee schedule based on mine size and 
facilities.

Small Business Regulatory Enforcement Fairness Act

    Based on the cost data previously discussed, this rule is not 
considered a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. This rule:
    1. Will not have an annual effect on the economy of $100 million.
    2. Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, State, or local government 
agencies, or geographic regions.
    3. Will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S. based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    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, 
local, or Tribal governments or the private sector.
    Therefore, a statement containing the information required by the 
Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

Paperwork Reduction Act

    This rule contains collections of information that require approval 
by OMB under 44 U.S.C. 3501 et seq. In accordance with 44 U.S.C. 
3507(d), we have submitted the information collection and recordkeeping 
requirements of 30 CFR part 737 to the Office of Management and Budget 
(OMB) for review and approval. We are planning to establish a new 
collection of information for the following activity:
    Title: 30 CFR Part 737--Processing Fees for Operations on Land 
Where OSM is the Regulatory Authority.
    OMB Control Number: 1029-xxxx.
    Summary: In an effort to promote fiscal responsibility, OSM has 
identified the need to update its regulations related to the permit 
application and related fees that we collect from the coal industry to 
more accurately reflect our costs. We have revised our Federal and 
Indian Lands Program regulations for the purpose of adjusting the 
existing permit fees and to assess fees to recover up to our actual 
costs for permit administration activities provided to the coal 
industry. The primary purpose of this regulation is to charge those who 
benefit from obtaining, and operating under, a surface coal mining and 
reclamation permit for our costs to review, administer, and enforce 
permits instead of passing those costs on to the general public. These 
fees are authorized under the Surface Mining Control and Reclamation 
Act of 1977 (SMCRA) and the Independent Offices Appropriations Act of 
1952. The fees relating to the processing of various categories of 
permit applications are considered a burden on the public under the 
Paperwork Reduction Act and need OMB approval accordingly.
    Bureau Form Number: None.
    Frequency of Collection: Once, on occasion.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Description of Respondents: Coal mine permittees.
    Total Annual Responses: 177 permittee responses.
    Total Annual Burden Hours: 0 burden hours.
    Total Annual Non-Wage Burden Costs: $1,142,069.
    Non-wage burden costs are the processing fees which OSM will assess 
on a case-by-case basis for various types of permitting activities. The 
fees below are based upon a national weighted-average for hours 
required for each geographical area to review applications and, 
therefore, should not be construed to represent the cost of an 
individual permit activity. Costs include the labor costs for Federal 
salaries and benefits, and an indirect charge of 21% of direct costs.
    (1) New Permits--4 applications x $45,423 in average Federal wage 
costs to review the application + 21% indirect costs = $219,848 
(rounded) for permit applicant fees. We anticipate minimum Federal wage 
costs of $19,318 (including indirect costs) and a maximum of $151,602 
(including indirect costs) per new permit application.
    (2) Permit Renewals--9 applications x $6,585 in average Federal 
wage costs to review the application + 21% indirect costs = $71,712 
(rounded) for permit renewals. We anticipate minimum Federal wage costs 
of $3,883 (including indirect costs) and a maximum of $74,673 
(including indirect costs) per permit renewal application.
    (3) Mid-Term Reviews--13 reviews x $7,228 in average Federal wage 
costs to review the application + 21% indirect costs = $113,698 
(rounded) for mid-term reviews. We anticipate minimum Federal wage 
costs of $3,883 (including indirect costs) and a maximum of $74,673 
(including indirect costs) per permit renewal application.
    (4) Transfer, Sale, or Assignment of Permit Rights--6 applications 
x $1,216 in average Federal wage costs to review the application + 21% 
indirect costs = $8,826 (rounded) for applications for the transfer, 
sale, or assignment of permit rights. We anticipate minimum Federal 
wage costs of $552 (including indirect costs) and a maximum of $9,446 
(including indirect costs) per transfer, sale, or assignment of permit 
rights application.
    (5) Exploration Permits--2 applications x $2,821 in average Federal 
wage costs to review the application + 21% indirect costs = $6,826 
(rounded) for exploration permits. We anticipate minimum Federal wage 
costs of $109 (including indirect costs) and a maximum of $12,824 
(including indirect costs) per exploration permit application.
    (6) Significant Permit Revisions--5 applications x $19,532 in 
average Federal wage costs to review the application + 21% indirect 
costs = $118,165 (rounded) for significant revisions to permits. We 
anticipate minimum Federal wage costs of $670 (including indirect 
costs) and a maximum of $74,824 (including indirect costs) per 
significant permit revision application.
    (7) Non-significant Permit Revisions--151 applications x $3,302 in 
average Federal wage costs to review the application + 21% indirect 
costs = $602,994 (rounded) for non-significant revisions to permits. We 
anticipate minimum Federal wage costs of $331 (including indirect costs 
and a maximum of $22,263 (including indirect costs) per non-significant 
permit revision application.

[[Page 20404]]

    Comments are invited on:
    (a) Whether the proposed collection of information is necessary for 
SMCRA regulatory authorities to implement their responsibilities, 
including whether the information will have practical utility.
    (b) The accuracy of our estimate of the burden of the proposed 
collections of information.
    (c) Ways to enhance the quality, utility, and clarity of the 
information to be collected.
    (d) Ways to minimize the burden of collection on the respondents.
    Under the Paperwork Reduction Act, we must obtain OMB approval of 
all information and recordkeeping requirements. No person is required 
to respond to an information collection request unless the form or 
regulation requesting the information has a currently valid OMB control 
(clearance) number. OSM is seeking a new OMB control number for the 
collection in proposed Part 737, which will appear in Sec.  737.10 once 
assigned. To obtain a copy of our information collection clearance 
request, contact John A. Trelease at 202-208-2783 or by email at 
<a href="/cdn-cgi/l/email-protection#f8928c8a9d949d998b9db8978b958a9dd69f978e"><span class="__cf_email__" data-cfemail="72180600171e17130117321d011f00175c151d04">[email protected]</span></a>. You may also review the information collection 
request at http://www.reginfo.gov/public/do/PRAMain. Follow the Web 
site to the Department of the Interior's collections currently under 
review by OMB, where you can find the collection being created for this 
proposed rulemaking.
    By law, OMB must respond to us within 60 days of publication of 
this proposed rule, but it may respond as soon as 30 days after 
publication. Therefore, to ensure consideration by OMB, you must send 
comments regarding these burden estimates or any other aspect of these 
information collection and recordkeeping requirements by April 25, 2013 
to the Office of Management and Budget, Office of Information and 
Regulatory Affairs, Attention: Interior Desk Officer, via email to 
<a href="/cdn-cgi/l/email-protection#4807011a09173b3d2a25213b3b2127260827252a662d2738662f273e"><span class="__cf_email__" data-cfemail="531c1a01120c2026313e3a20203a3c3d133c3e317d363c237d343c25">[email protected]</span></a>, or via facsimile to (202) 395-5806. Also, 
send a copy of your comments to John Trelease, Office of Surface Mining 
Reclamation and Enforcement, 1951 Constitution Ave. NW., Room 203 SIB, 
Washington, DC 20240, electronically to <a href="/cdn-cgi/l/email-protection#1f756b6d7a737a7e6c7a5f706c726d7a31787069"><span class="__cf_email__" data-cfemail="7e140a0c1b121b1f0d1b3e110d130c1b50191108">[email protected]</span></a>, or by 
facsimile to (202) 219-3276. You may still send comments on the 
proposed rulemaking to us until 4:30 p.m., Eastern Time, on April 30, 
2013.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because the rule is covered by the categorical exclusion 
listed in the Department of the Interior regulations at 43 CFR 
46.210(i). That categorical exclusion covers policies, directives, 
regulations and guidelines that are of an administrative, financial, 
legal, technical, or procedural nature. We have also determined that 
the rule does not involve any of the extraordinary circumstances listed 
in 43 CFR 46.215 that would require further analysis under NEPA.

Executive Order 12988--Civil Justice Reform

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rule that is (1) considered significant under 
Executive Order 12866, and (2) likely to have a significant adverse 
effect on the supply, distribution, or use of energy. This rule is not 
expected to have a significant adverse effect on the supply, 
distribution, or use of energy. It will have limited effect in the 
states of Tennessee and Washington and on those mining on Indian lands. 
Further, the rule does not prohibit surface coal mining operations; 
therefore, a Statement of Energy Effects is not required.

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 proposed revisions would not have 
substantial direct effects on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes. In 
November of 2011, OSM held separate meetings with representatives of 
the Crow Tribe, Hopi Tribe and the Navajo Nation to discuss the 
proposed rule and obtain their comments. Each of these Indian Tribes/
Nations currently has or anticipates having coal mining activity.
    One concern that was expressed was that the proposed rule would put 
coal mining on Indian lands at a disadvantage as compared to coal 
mining on lands where OSM is not the regulatory authority. We 
understand this concern; however, there are already differences in 
permitting fees, severance taxes and other taxes that are assessed in 
the various States and Indian lands where OSM is the regulatory 
authority. Another concern that was expressed was how the proposed rule 
would impact Indian lands once the Tribe/Nation assumes either full or 
partial primacy. If a Tribe/Nation assumes full primacy, it would 
replace OSM as the regulatory authority and the fees in this proposed 
rule would no longer be collected by OSM. In that case, the Tribe/
Nation would have authority to set its own fees pursuant to sections 
507(a) and 710(j)(1)(B). If a Tribe/Nation assumes only partial 
primacy, OSM would still assess fees for the work it does in lieu of 
the Tribe/Nation. For example, if a Tribe/Nation decided to assume 
responsibility for inspection and enforcement but not permit 
processing, OSM would assess and collect the permit processing fee.
    The Crow Tribe's ``Ceded Strip'' in Montana represents a unique and 
special situation. The United States Department of the Interior and the 
State of Montana entered into a Memorandum of Understanding (MOU) on 
August 12, 1985, ``to provide for effective regulation of surface coal 
mining and reclamation operations * * * on lands on the Crow Ceded 
Strip in Montana in a manner that achieves the regulatory purposes of 
the Surface Mining Control and Reclamation Act of 1977, fosters State-
Federal cooperation and eliminates unnecessary burdens, 
intergovernmental overlap and duplicative regulation.'' Under the terms 
of the MOU, the Department of the Interior and Montana agreed to 
coordinate the administration of applicable surface mining requirements 
in the Crow Ceded Strip. Under this proposed rule, permits and 
applications on lands within the Crow Ceded Strip would be subject to 
the processing fee and the annual fixed fee for all services OSM 
provides because these services provide special benefits or privileges 
to an identifiable non-Federal recipient above and beyond those which 
accrue to the public at large. Because, pursuant to the MOU, OSM and 
Montana share responsibility for the regulation of

[[Page 20405]]

surface coal mining and reclamation operations on the Crow Ceded Strip, 
OSM would expect the processing fees it charges to an applicant, 
operator, or permittee located on the Crow Ceded Strip to address only 
the costs OSM incurs with regard to its regulatory responsibilities 
under SMCRA, and not the separate costs that Montana incurs as a result 
of its responsibilities under SMCRA and the MOU. Therefore, OSM would 
also expect that its processing fees would be lower than the fees that 
OSM would charge a comparable operation that is not within those 
boundaries. Because, consistent with the MOU, OSM would charge only 
those processing and annual fixed fees attributable to the regulatory 
functions that OSM actually performs, we do not view the potential 
assessment of two sets of fees (Montana's and OSM's) as unnecessary and 
duplicative.

Executive Order 12630--Takings

    Under the criteria in Executive Order 12630, this rule does not 
have significant takings implications; therefore, a takings implication 
assessment is not required. This determination is based on the fact 
that the rule will not have an impact on the use or value of private 
property.

Executive Order 13132--Federalism

    This proposed rule does not have Federalism implications because it 
only seeks to recover costs incurred by the Federal government for 
activities within the exclusive jurisdiction of the Federal 
government--e.g., in States that have not assumed primacy. Thus, it 
will not have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''

Data Quality Act

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

Clarity of These Regulations

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this proposed rule easier to understand, including answers to questions 
such as the following:
    (1) Are the requirements in the proposed rule clearly stated?
    (2) Does the proposed rule contain technical language or jargon 
that interferes with its clarity?
    (3) Does the format of the proposed rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity?
    (4) Would the rule be easier to understand if it were divided into 
more but shorter sections (a ``section'' appears in bold type and is 
preceded by the symbol ``Sec. '' and a numbered heading; for example, 
``Sec.  736.25 Who is required to pay fees?'')
    (5) Is the description of the proposed rule in the SUPPLEMENTARY 
INFORMATION part of this preamble helpful in understanding the proposed 
rule?
    (6) What else could we do to make the proposed rule easier to 
understand?
    Send a copy of any comments that concern how we could make this 
proposed rule easier to understand to: Office of Information and 
Regulatory Affairs, Department of the Interior, Room 7229, 1849 C 
Street NW., Washington, DC 20240. You may also email the comments to 
this address: <a href="/cdn-cgi/l/email-protection#2f6a575c4a4c6f46405c014b404601484059"><span class="__cf_email__" data-cfemail="8dc8f5fee8eecde4e2fea3e9e2e4a3eae2fb">[email protected]</span></a>.

List of Subjects

30 CFR Part 701

    Law Enforcement, Surface mining, Underground mining.

30 CFR Part 736

    Intergovernmental relations, Surface mining, Underground mining.

30 CFR Part 737

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

30 CFR Part 738

    Intergovernmental relations, Surface mining, Underground mining.

30 CFR Part 750

    Indian lands, Intergovernmental relations, Reporting and 
recordkeeping requirements, Surface mining.

    Dated: March 3, 2013.
Tommy P. Beaudreau,
Principal Deputy Assistant Secretary--Land and Minerals Management.
    For the reasons set forth in the preamble, we propose to amend 30 
CFR Chapter VII as follows.

PART 701--PERMANENT REGULATORY PROGRAM

0
1. The authority citation for part 701 continues to read as follows:

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

0
2. In Sec.  701.5, in the definition for the term ``violation,'' add 
paragraph (2)(vi) to read as follows:


Sec.  701.5  Definitions.

* * * * *
    Violation * * *
    (2) * * *
    (vi) a bill or demand letter pertaining to a delinquent processing 
fee or annual fixed fee owed under parts 736 and 750 of this chapter.
* * * * *

PART 736--FEDERAL PROGRAM FOR A STATE

0
3. The authority citation for part 736 is revised to read as follows:

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

0
4. Revise Sec.  736.25 to read as follows:


Sec.  736.25  Who is required to pay fees?

    You, the applicant, permittee, or operator of a surface coal mining 
and reclamation operation on land where OSM is the regulatory authority 
or has substituted federal enforcement under Part 733 of this Chapter, 
must pay the fees required by this subchapter if:
    (a) You are an applicant for a permit to conduct surface coal 
mining and reclamation operations, a permit to conduct coal exploration 
(but excluding a written notice of intention to explore under Sec.  
772.11), a permit renewal or revision, a transfer, assignment or sale 
of rights in an existing permit, or any other action on which OSM may 
assess fees as specified in 30 CFR Chapter VII, and we receive your 
application on or after [the effective date of this rule]; or
    (b) You are a permittee or operator of a surface coal mining and 
reclamation operation and we begin to conduct a mid-term review of your 
operation after [the effective date of this rule]; or
    (c) You are a permittee or operator of a surface coal mining and 
reclamation operation and we are required to inspect your operation.
0
5. Add Sec. Sec.  736.26 and 736.27 to read as follows:


Sec.  736.26  What fees must I pay if I am an applicant?

    Before we (OSM) begin to process your application for one of the 
activities listed in Sec.  736.25(a) or (b), you must pay a processing 
fee as set forth in Part 737 of this subchapter.


Sec.  736.27  What fees must I pay if I am a permittee or an operator?

    Beginning on [the effective date of this rule], you must pay
    (a) a processing fee as set forth in Part 737 of this subchapter 
when we conduct a mid-term review of your permit; and
    (b) an annual fixed fee as set forth in Part 738 of this 
subchapter.
0
6. Add part 737 to subchapter C to read as follows:

[[Page 20406]]

PART 737--PROCESSING FEES FOR OPERATIONS ON LAND WHERE OSM IS THE 
REGULATORY AUTHORITY

Sec.
737.1 What does this part do?
737.10 Information collection.
737.11 What happens after I submit a permit application or a mid-
term review is required for my surface coal mining and reclamation 
operation?
737.12 How much is the processing fee?
737.13 May I pay the processing fee in installments?
737.14 When must I pay the processing fee?
737.15 What method of payment may I use to pay my fees?
737.16 What if the processing fee estimate is more or less than the 
actual processing costs?
737.17 What happens to the processing fees I have paid if I decide 
to withdraw my application or other action, or if the application is 
denied?
737.18 What happens if I am late paying the processing fee?

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


Sec.  737.1  What does this part do?

    (a) This part describes the processing fee, including how and when 
to pay this fee.
    (b) Except for a bond release application under Sec.  800.40, all 
applicants for a permit to conduct surface coal mining and reclamation 
operations or coal exploration operations (but excluding a written 
notice of intention to explore under Sec.  772.11), a permit renewal or 
revision, a transfer, assignment or sale of rights in an existing 
permit, or any other action on which OSM may assess fees as specified 
in 30 CFR Chapter VII are required to pay the processing fee if we 
(OSM) receive your application on or after [the effective date of this 
rule] involving land where we are the regulatory authority or where we 
have substituted federal enforcement under Part 733 of this Chapter.
    (c) All operators and permittees of surface coal mining and 
reclamation operations are required to pay the processing fee if we are 
required to conduct a mid-term review of your permit on or after [the 
effective date of this rule] involving land where we are the regulatory 
authority or where we have substituted federal enforcement under Part 
733 of this Chapter.


Sec.  737.10  Information collection.

    The collections of information contained in Part 737 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned control number 1029-XXXX. OSM uses the information 
collected in this Part to re-estimate and collect fees imposed on 
permit applicants for surface coal mining and reclamation operations 
and on operators and permittees when OSM is required to perform a mid-
term review. Respondents are required to respond to obtain a benefit in 
accordance with SMCRA. A Federal agency may not conduct or sponsor, and 
you are not required to respond to, a collection of information unless 
it displays a currently valid OMB control number.


Sec.  737.11  What happens after I submit a permit application or a 
mid-term review is required for my surface coal mining and reclamation 
operation?

    After we receive a permit application or other permitting action 
identified in section 736.25(a) and before we begin processing that 
application or when a mid-term review of your permit is required, we 
will provide you with a written initial estimate of the fee and 
processing time.


Sec.  737.12  How much is the processing fee?

    (a) We will determine the amount of the processing fee on a case-
by-case basis and provide you with an initial estimate. Our initial 
estimate of your processing fee will be an estimate of our costs to 
review and process your application or conduct a mid-term review of 
your operation and will be based on our costs to review recent, similar 
applications and actions. The amount of the fee will consist of:
    (1) Our actual direct costs to process the permit application or 
other action; and
    (2) An applied indirect rate (expressed as a percentage of direct 
costs) to recover that portion of our indirect costs associated with 
performing the review.
    (b) Your final cost will be the sum of the actual costs that we 
incurred.


Sec.  737.13  May I pay the processing fee in installments?

    Yes. You have the option to either:
    (a) Submit the estimated fee in one lump sum; or
    (b) If the processing time of your application or other action is 
estimated to be more than six months, you may request to pay the 
estimated fee in installments. The amount of the partial payment will 
be calculated by dividing the total estimated fee amount by the number 
of six-month billing periods estimated for our processing.


Sec.  737.14  When must I pay the processing fee?

    (a) You must make full payment or the first installment of your 
payment, if applicable, within 30 days of the date of the initial 
estimate.
    (b) If you are paying the processing fee in installments, we will 
bill you for the second installment and all future installments within 
10 days following the end of each six-month period while we are 
processing your application or other action. We must receive payment 
within 30 days of the billing date on your invoice.
    (c) You must pay the entire fee before we will issue the final 
decision document. However, if you are revising your permit to remedy a 
violation, we may postpone the deadline for your payment of the fee as 
necessary to avoid causing a delay in your corrective action.


Sec.  737.15  What method of payment may I use to pay my fees?

    All fees due must be submitted to us in the form of an electronic 
funds transfer (EFT) or a certified check, bank draft or money order 
payable to the Office of Surface Mining. A bank draft is a check, draft 
or other order for payment of money drawn by an authorized officer of 
the bank.


Sec.  737.16  What if the processing fee estimate is more or less than 
the actual processing costs?

    (a) If you are paying your processing fee in installments, we will 
generally re-estimate the fee every 6 months once processing has begun. 
If our actual costs to process your application or other action are 
higher or lower than the amount that you paid, we will adjust the 
amount of a subsequent billing cycle to reflect this difference.
    (b) If you paid the full amount of the fee estimate and our actual 
processing costs are more than the amount paid, OSM will notify you 
that the costs are expected to be higher and provide you with a revised 
estimate. If you do not pay the additional fees as required, we may 
stop processing your application or other action until we receive 
payment, unless, in our discretion, we decide it is in the public 
interest to continue to process your application or other action.
    (c) If our actual processing costs are less than the processing fee 
that you have paid, we will refund any fees to you that were not used 
after issuance of the final decision document. No interest will be paid 
on refunded fees.


Sec.  737.17  What happens to the processing fees I have paid if I 
decide to withdraw my application or other action, or if the 
application is denied?

    Except for mid-term reviews, if you decide to withdraw your 
application or other action, you must notify us in writing, and we will 
stop processing your application or other action and refund any moneys 
that you paid in

[[Page 20407]]

excess of our processing costs to date. No interest will be paid on 
refunded fees. If we ultimately deny your application, you will 
nevertheless still be responsible for the costs that we incurred in 
reviewing and processing your application.


Sec.  737.18  What happens if I am late paying the processing fee?

    (a) Except for mid-term reviews, processing will not normally begin 
on your application or other action until we receive your required 
payment; however, if you submit a permit revision application to remedy 
a violation, depending on the specific circumstances, we may begin to 
process your permit revision application before we receive your 
processing fee to avoid causing a delay in your corrective action.
    (b) If you are eligible and choose to pay in installments under 
Sec.  737.13(b) and you are late paying your six-month processing fee, 
we will suspend further work on your application or other action, 
except mid-term reviews, until we receive payment.
    (c) All late payments will be subject to interest, penalties, and 
administrative charges as provided in the Debt Collection Act of 1982, 
as amended, and 31 CFR 901.9. The failure to make a timely payment of 
this fee constitutes a violation that will be entered into the 
Applicant/Violator System.
0
7. Add part 738 to subchapter C to read as follows:

PART 738--ANNUAL FIXED FEES FOR OPERATIONS ON LAND WHERE OSM IS THE 
REGULATORY AUTHORITY

Sec.
738.1 What does this part do?
738.11 How much is the annual fixed fee?
738.12 When is the payment for the annual fixed fee due?
738.13 What method of payment may I use to pay my fees?
738.14 What happens if I am late paying the annual fixed fee?
738.15 What happens if my permit achieves a subsequent phase of bond 
release or becomes inactive after I have paid my annual fixed fee 
rate for the year?
738.16 How will my prorated bill for my existent permit be 
determined?

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


Sec.  738.1  What does this part do?

    This part informs you, the permittee or operator of a surface coal 
mining and reclamation operation, of the fee schedule for the annual 
fixed fee and how and when to pay this fee. It applies to operations on 
land where we (OSM) are the regulatory authority or where we have 
substituted federal enforcement under Part 733 of this Chapter.


Sec.  738.11  How much is the annual fixed fee?

    (a) The table in paragraph (b) of this section sets the annual 
fixed fee rate, which is based on the geographic region; the permit 
acreage and type of operation; the permit's phase of bond release, if 
any; and special situations (such as initial program sites and permits 
that are inactive). The table contains separate rates applicable to 
surface coal mining and reclamation operations located east and west of 
the 100th meridian west longitude. The table identifies two different 
types of permitted operations: support facilities and surface/
underground mines. Support facilities include preparation plants, 
ancillary facilities (such as haul roads), refuse and/or impoundment 
sites, loading facilities and/or tipples, and stockpiles.
    (b) Annual Fixed Fee Table (in dollars):

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 Surface coal mines (including underground mines)
                                                         -----------------------------------------------------------------------------------------------
                                                                                             >=100 to
                                                                               <100           <1,000        >=1,000 to      >=10,000 to      >=20,000
                                                              Support        Permitted       Permitted        <10,000         <20,000        Permitted
                                                            facilities         acres           acres         Permitted       Permitted         acres
                                                                                             (dollars)         acres           acres
--------------------------------------------------------------------------------------------------------------------------------------------------------
Areas East of the 100th Meridian West Longitude:
    Permit Without Phase II Bond Release................           3,100           3,300           5,900          18,000              na              na
    Permit With Phase II Bond Release...................           1,300           1,400           2,900          13,000              na              na
    Permit Inactive.....................................           1,300           1,400           2,900           1,300              na              na
    Initial Program Operations..........................              na             700           1,450              na              na              na
Areas West of the 100th Meridian West Longitude:
    Permit Without Phase II Bond Release................           8,600              na           8,300          17,000          26,000          96,000
    Permit With Phase II Bond Release...................           2,800              na           3,300           7,900          13,000          72,000
    Permit Inactive.....................................           2,800              na           3,300           7,900          13,000          72,000
    Initial Program Operations..........................           1,400           2,000              na           3,950              na              na
--------------------------------------------------------------------------------------------------------------------------------------------------------
For initial program operations, the permit fee relates to the site acreage.
Fees include 21% percent overhead.
na = no permits available in these categories.

    (c) We will periodically adjust the annual fixed fees to reflect 
changes in our direct costs and indirect rates. The revised annual 
fixed fee rates will be published in the Federal Register and will take 
effect at the start of the next fiscal year when new annual bills are 
sent.


Sec.  738.12  When is payment of the annual fixed fee due?

    We will bill you on an annual basis in advance of administering and 
enforcing your permit for the next fiscal year. Existing permittees 
must pay a prorated bill for the period beginning on the effective date 
of the rule through the end of the current fiscal year (September 30). 
Similarly, new permits awarded after the effective date of this rule 
must pay a prorated bill for the period beginning on the date the 
permit was issued through the end of the current fiscal year (September 
30). Thereafter, all annual bills will be sent at the start of each new 
fiscal year (October 1). We must receive payment for your annual fixed 
fee within 30 days of the billing date on your invoice.

[[Page 20408]]

Sec.  738.13  What method of payment may I use to pay my fees?

    All fees due must be submitted to us in the form of an electronic 
funds transfer (EFT) or a certified check, bank draft or money order 
payable to Office of Surface Mining. A bank draft is a check, draft or 
other order for payment of money drawn by an authorized officer of the 
bank.


Sec.  738.14  What happens if I am late paying the annual fixed fee?

    If you are late paying the annual fixed fee, we may take any 
enforcement action necessary to comply with parts 843, 845, and 846 of 
this chapter. In addition, late payments will be subject to interest, 
penalties, and administrative charges as provided in the Debt 
Collection Act of 1982, as amended, and 31 CFR 901.9. The failure to 
make a timely payment of this fee constitutes a violation that will be 
entered into the Applicant/Violator System.


Sec.  738.15  What happens if my permit achieves a subsequent phase of 
bond release or becomes inactive after I have paid my annual fixed fee 
rate for the year?

    (a) If your permit or operation achieves a subsequent phase of bond 
release or becomes inactive during the year after you have paid your 
annual fixed fee, you are eligible for a reduction of your annual fixed 
fee and you may be eligible for a partial refund of the annual fixed 
fee.
    (b) You are eligible for a partial refund of your annual fixed 
fees, if:
    (1) Your permit completes a phase of bond release within the first 
6 months of the billing year; or
    (2) Your permit or operation is inactive for 12 or more continuous 
months.
    (c) We will prorate the amount of your refund based on the 
effective date of the event that makes your permit or operation 
eligible for the reduced annual fixed fee rate, whichever is later.
    (d) Your partial refund will be credited to your next annual bill 
unless you request a refund check in writing.


Sec.  738.16  How will my prorated bill for my existent permit be 
determined?

    Once this proposed rule becomes effective, we will send you a 
prorated annual fixed fee bill for the remainder of the billing year. 
For sites where we are required to annually conduct 4 complete 
inspections and 8 partial inspections, your prorated bill will be 
determined by the number of remaining months in the billing year. For 
sites that require only two complete annual inspections, their amount 
will be determined by the timing of our inspections rather than the 
remaining months in the billing year.

PART 750--REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION 
OPERATIONS ON INDIAN LANDS

0
8. The authority citation for part 750 continues to read as follows:


    Authority: 30 U.S.C. 1201 et seq.
0
9. Revise Sec.  750.25 to read as follows:


Sec.  750.25  Who is required to pay fees?

    You, the applicant, permittee, or operator of a surface coal mining 
and reclamation operation on Indian lands for which OSM is the 
regulatory authority, must pay the fees required by parts 737 and 738 
of this chapter if:
    (a) You are an applicant for a permit to conduct surface coal 
mining and reclamation operations, coal exploration (but not a notice 
of intention to explore), a permit renewal or revision, a transfer, 
assignment or sale of rights in an existing permit, or any other action 
on which OSM may assess fees as specified in 30 CFR Chapter VII, and we 
receive your application on or after [the effective date of this rule]; 
or
    (b) You are a permittee or operator of a surface coal mining and 
reclamation operation and we begin to conduct a mid-term review of your 
operation after [the effective date of this rule]; or
    (c) You are a permittee or operator of a surface coal mining and 
reclamation operation and we are required to inspect your operation.
    10. Add Sec. Sec.  750.26 and 750.27 to read as follows:


Sec.  750.26  What fees must I pay if I am an applicant?

    Before we (OSM) begin to process your application for one of the 
activities listed in Sec.  750.25(a), you must pay a processing fee as 
set forth in Part 737 of this subchapter.


Sec.  750.27  What fees must I pay if I am a permittee or an operator?

    Beginning on [the effective date of this rule], you must pay
    (a) a processing fee as set forth in Part 737 of this chapter when 
we conduct a mid-term review of your permit; and
    (b) an annual fixed fee as set forth in Part 738 of this chapter.

    [FR Doc. 2013-06950 Filed 3-25-13; 8:45 am]

    Editorial Note: FR Doc. 2013-6950 which was originally published 
on pages 18430-18444 in the issue of Tuesday, March 26, 2013 is 
being republished in its entirety in the issue of Thursday, April 4, 
2013 because of editing errors.
[FR Doc. R1-2013-06950 Filed 4-3-13; 8:45 am]
BILLING CODE 1505-01-D


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