20394 Federal Register / Vol. 78, No. 65 / Thursday, April 4, 2013 / Proposed Rules 

1The 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. 

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. 

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: 

• 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. 

• 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 OIRA_submission@omb.

eop.gov, 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. 

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 


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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. 


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2SMCRA 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). 

We considered many options, including 

the recovery of actual costs, average 

costs, and standard costs through a caseby-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-bycase 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. 

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 § 733.12(g); or 

b. Withdraw approval of all or part of a 

State program and implement a replacement 

Federal program pursuant to § 733.12(h). 

In the event that OSM does substitute 

direct federal enforcement or withdraws 


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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 § 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 § 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 §§ 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 § 843.12. If the 

processing fee is not paid by the date 

specified in § 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 


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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 

§ 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 § 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 § 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 § 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 


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days of the printed date of our estimate 

under proposed § 737.14. Proposed 

§ 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 § 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 

§ 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 

§ 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 

§ 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 § 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 nonlabor costs (if applicable). 

We would reconcile our estimated 

costs and actual costs pursuant to 

proposed § 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 § 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 


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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-sizefits-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 § 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 

§ 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 § 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 § 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 


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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 threeyear 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 

§ 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 

§ 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 

§ 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 § 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 


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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 

§ 738.15. 

Would the annual fixed fees be updated 

or revised? 

Yes. Under proposed § 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 coalmining 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 


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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 weightedaverage 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 × 

$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 × 

$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 × 

$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 × $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 × $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 × $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 × $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. 


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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 

§ 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 

jtrelease@osmre.gov. 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 

OIRA_submission@omb.eop.gov, 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 

jtrelease@osmre.gov, 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 Federallyrecognized 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 


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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 ‘‘§’’ and a numbered heading; 

for example, ‘‘§ 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: 

Exsec@ios.doi.gov. 

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 

■ 1. The authority citation for part 701 

continues to read as follows: 

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

■ 2. In § 701.5, in the definition for the 

term ‘‘violation,’’ add paragraph (2)(vi) 

to read as follows: 

§ 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 

■ 3. The authority citation for part 736 

is revised to read as follows: 

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

■ 4. Revise § 736.25 to read as follows: 

§ 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 § 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. 

■ 5. Add §§ 736.26 and 736.27 to read 

as follows: 

§ 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 § 736.25(a) or (b), you must pay 

a processing fee as set forth in Part 737 

of this subchapter. 

§ 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. 

■ 6. Add part 737 to subchapter C to 

read as follows: 


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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. 

§ 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 § 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 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 reestimate 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. 

§ 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 


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

§ 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 § 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. 

■ 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. 

§ 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. 

§ 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) 

Support 

facilities 

<100 

Permitted 

acres 

≥100 to 

<1,000 

Permitted 

acres 

(dollars) 

≥1,000 to 

<10,000 

Permitted 

acres 

≥10,000 to 

<20,000 

Permitted 

acres 

≥20,000 

Permitted 

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. 

§ 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. 


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20408 Federal Register / Vol. 78, No. 65 / Thursday, April 4, 2013 / Proposed Rules 

§ 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. 

§ 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. 

§ 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. 

§ 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 

■ 8. The authority citation for part 750 

continues to read as follows: 

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

■ 9. Revise § 750.25 to read as follows: 

§ 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 §§ 750.26 and 750.27 to read 

as follows: 

§ 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 § 750.25(a), you must pay a 

processing fee as set forth in Part 737 of 

this subchapter. 

§ 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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