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###### Department of the Interior

###### Office of Surface Mining Reclamation and Enforcement 

          - 30 CFR Part 906 
          - [CO-031-FOR] 

# AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior. 

# ACTION:

Proposed rule; reopening and extension of public comment period and opportunity for public hearing on proposed amendment. 

# SUMMARY:

We are announcing receipt of revisions pertaining to a previously proposed amendment to the Colorado abandoned mine land reclamation (AMLR) plan (hereinafter, the “Colorado plan”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Colorado proposes revisions about: Project selection criteria; selection of project alternatives; requirements for authorization to proceed; evaluation of project benefits; incorporation of the “Common Rule” in the procedures for financial management and accounting; interaction with the Colorado State Forest Service; and minor editorial revisions. Colorado intends to revise its plan to meet the requirements of the corresponding Federal regulations, to provide additional safeguards, and to clarify ambiguities. 

# DATES:

Comments on this amendment must be received on or before 4 p.m., m.d.t., on October 17, 2005 to ensure our consideration. If requested, we will hold a public hearing on the amendment on October 11, 2005. We will accept requests to speak until 4 p.m., m.d.t., on September 30, 2005. 

# ADDRESSES:

You may submit comments, identified by “CO-031-FOR,” by any of the following methods: 

                        E-mail:                         *rpair@osmre.gov.*                         Include “CO-031-FOR” in the subject line of the message.                     

Mail: James Fulton, Chief, Denver Field Division, Office of Surface Mining Reclamation and Enforcement, P.O. Box No. 46667, Denver, CO 80201-6667. 

Hand Delivery/Courier: James Fulton, Chief, Denver Field Division, Office of Surface Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, CO 80202-5733, 303-844-1400 x1424. 

Fax: 303-844-1545. 

                        Federal eRulemaking Portal:                         *http://www.regulations.gov.*                         Follow the instructions for submitting comments.                     

*Instructions:*                         All submissions received must include the agency name and be identified by “CO-031-FOR”. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Comment Procedures” heading of the                         **SUPPLEMENTARY INFORMATION**                         section of this document.                     

*Docket:*                         You may review the docket (administrative record) for this plan amendment at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. The docket will contain copies of the Colorado plan, this amendment, a listing of any scheduled public hearings, and all written comments received in response to this document. You may receive one free copy of the amendment by contacting Office of Surface Mining Reclamation and Enforcement's (OSM) Denver Field Division. In addition, you may review a copy of the amendment during regular business hours at the following locations:                     

James Fulton, Chief, Denver Field Division, Office of Surface Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, CO 80202. 303-844-1400 x1424. 

                        Ms. Loretta Pineda, Program Supervisor, Colorado Inactive Mine Reclamation Program, Division of Minerals and Geology, Colorado Department of Natural Resources, 1313 Sherman Street, Room 215, Denver, CO 80203. Telephone: 303-866-3567. E-mail address:                         *loretta.pineda@state.co.us.*

# FOR FURTHER INFORMATION CONTACT:

                        James Fulton, Telephone: 303-844-1400 x1424, E-mail address:                         *jfulton@osmre.gov.*

# SUPPLEMENTARY INFORMATION:

 

I. Background on the Colorado Plan 

II. Description of the Proposed Amendment 

III. Public Comment Procedures 

IV. Procedural Determinations

## I. Background on the Colorado Plan 

                    The Abandoned Mine Land Reclamation Program was established by Title IV of the Act, (30 U.S.C. 1201*et seq.*) in response to concerns over extensive environmental damage caused by past coal mining activities. The program is funded by a reclamation fee collected on each ton of coal that is produced. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Indian tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mines. On June 11, 1982, the Secretary of the Interior approved the Colorado plan. You can find general background information on the Colorado plan, including the Secretary's findings and the disposition of comments, in the June 11, 1982,                     **Federal Register**                     (47 FR 25332). You can also find later actions concerning Colorado's plan and plan amendments at 30 CFR 906.25.                 

## II. Description of the Proposed Amendment 

                    By letter dated October 29, 1996, Colorado sent to us a proposed                           ( print page 54491)                        amendment to its plan (administrative record number CO-AML-24) under SMCRA (30 U.S.C. 1201*et seq.*). Colorado sent the amendment in response to a September 26, 1994, letter (administrative record number CO-AML-19) that we sent to Colorado in accordance with 30 CFR 884.15(b), and at its own initiative. The full text of the Colorado plan amendment is available for you to read at the locations listed above under                     **ADDRESSES**                     above.                 

                    We announced receipt of the proposed amendment in the November 19, 1996,                     **Federal Register**                     (61 FR 58800), provided an opportunity for a public hearing or meeting on its substantive adequacy, and invited public comment on its adequacy (administrative record number CO-AML-26). Because no one requested a public hearing or meeting, none was held. The public comment period ended on December 19, 1996. We received comments from one industry group, four Federal agencies and two citizen or academic groups.                 

During our review of the amendment, we identified a concern relating to the provisions of Colorado's plan provisions at Section V.B.2. concerning the determination of eligibility for proposed sites. We notified Colorado of our concern by letter dated June 7, 1999 (administrative record number CO-AML-35). Colorado responded by a memo dated June 15, 2005, by submitting a revised amendment (administrative record number CO-AML-36). Colorado is also taking this opportunity to submit additional revisions at its own initiative. 

The provisions of the plan that Colorado now proposes to revise are: II.B, Project selection criteria; II.C., Selection of project alternatives; V.B., Requirements for authorization to proceed; V.B.5., Evaluation of project benefits; VII.A.1.and 2., incorporation of the “Common Rule” in the procedures for financial management and accounting; VIII., Interaction with the Colorado State Forest Service; and several editorial corrections. 

Specifically, Colorado proposes the following revisions. 

*II.B., Project selection criteria.*                     Colorado proposes 15 criteria to be used in selecting projects for submission to OSM in grant applications. These include: (1) Public safety hazards (coal hazards receive top priority; noncoal projects must represent “extreme hazards”); (2) funding considerations (consideration of total funds from all sources and any constraints on the funds); (3) technology available to accomplish the required tasks; (4) adverse impacts (consideration of impacts on people and the environment during and after reclamation work, including existing impacts); (5) value in economy and efficiency of the proposed project; (6) mineral recoverability (consider loss of mineral recoverability and possible disruption of the reclamation effort by future mining); (7) post-reclamation management (compatibility with on-site and surrounding land uses and applicable land use controls); (8) minerals involved in the inactive mining (coal receives top priority; noncoal or hardrock problems are of lower priority and must be extreme hazards); (9) geographic distribution (the plan tries to maintain a presence in all areas of the State each year for hardrock projects; geography is not applicable for coal-related projects); (10) accessibility (preference given to sites that are accessible and show significant visitation); (11) staffing (number of projects is limited by staff available); (12) community/landowner support (special consideration given to sites and projects where reclamation has been requested by landowners or the local community); (13) project size (small projects encourage local contractor participation); (14) project review (representing the priorities of an advisory committee); and (15) formal public hearing (final approval of site selection is given by the Mined Land Reclamation Board).                 

*II.C., Selection of project alternatives.*                     Colorado proposes that after a tentative project selection, a suitable reclamation design for each project be selected. General alternatives are: (1) Hazard abatement (eliminate the hazard without necessarily addressing future land use); (2) partial reclamation (corrective action on hazards, but also make immediate site compatible with adjacent land uses); and (3) full reclamation (not only correct hazardous conditions, but also reclaim other effects of past mining, possibly including restoration of degraded land or water resources). Colorado proposes that the objective is to do as complete a reclamation job as possible, including restoration and abatement or control of adverse effects of past mining; but in some cases, only hazard abatement or partial reclamation will be performed.                 

*V.B. Colorado proposes to change the title of this section from “Project Feasibility Studies” to “Authorization to Proceed Requirements.*                    ”                 

*V.B.5., Evaluation of project benefits.*                     Colorado proposes to limit the requirement for a written finding of project benefits to those projects which would potentially produce a significant increase in market value.                 

*VII.A.1. (financial management).*                     Colorado proposes to change the reference regarding Federal financial requirements to “OMB Circular A-102 and DOI's Grants Management Common Rule at 43 CFR 12”. Colorado proposes that fiscal management will comply with the Common Rule.                 

*VII.A.2., Audits.*                     Colorado proposes to change the reference regarding Federal audit requirements from “OMB Circular A-102” to “the Common Rule.”                 

*VIII.I., Colorado State Forest Service (CSFS).*                     Colorado proposes to add a new section describing the role that the CSFS plays in the plan implementation, which describes the CSFS's expertise in natural resource protection.                 

We note that the document submitted to OSM (administrative record number CO-AML-36) is not limited to the proposed revisions described here. It is a full version of the Colorado plan document, and indicates all changes since the plan was originally approved by OSM (see Section I. Background on the Colorado Plan above). In this document, text highlighted in magenta indicates language that has been approved by OSM (in 1985). Text highlighted with yellow and blue is language that was proposed in 1996, and has already been opened to public comment (see Section II. Description of the Proposed Amendment above). The text that is new with this current submittal is highlighted in green. We noted a couple of new changes that are not highlighted in green, but they are minor editorial changes. In this proposed rule, we are specifically requesting comments on the new material highlighted in green, as described above. 

## III. Public Comment Procedures 

### Written Comments 

                    Send your written comments to us at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We cannot ensure consideration of comments received at locations other than the Denver Field Division (see                     **ADDRESSES**                     above).                 

### Electronic Comments 

                    Please submit Internet comments as an ASCII or MS Word file, avoiding the use of special characters and any form of encryption. Please also include “Attn: SATS No. CO-031-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the                           ( print page 54492)                        Denver Field Division at 303-844-1400 x1446.                 

### Availability of Comments 

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety. 

### Public Hearing 

                    If you wish to speak at the public hearing, contact the person listed under                     **FOR FURTHER INFORMATION CONTACT**                     by 4 p.m., m.d.t., on September 30, 2005. If you are disabled and need special accommodations to attend a public hearing, please contact the individual listed under                     **FOR FURTHER INFORMATION CONTACT.**                     We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing.                 

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak, and others present in the audience who wish to speak, have been heard. 

### Public Meeting 

                    If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under                     **FOR FURTHER INFORMATION CONTACT.**                     All such meetings will be open to the public and, if possible, we will post notices of meetings at the locations listed under                     **ADDRESSES.**                     We will make a written summary of each meeting a part of the administrative record.                 

## IV. Procedural Determinations 

### Executive Order 12630—Takings 

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation. 

### Executive Order 12866—Regulatory Planning and Review 

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review). 

### Executive Order 12988—Civil Justice Reform 

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of Tribal or State AMLR plans and revisions thereof because each plan is drafted and promulgated by a specific Tribe or State, not by OSM. Decisions on proposed Tribal or State AMLR plans and revisions thereof submitted by a Tribe or State are based on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the applicable Federal regulations at 30 CFR part 884. 

### Executive Order 13132—Federalism 

This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State Governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. 

### Executive Order 13175—Consultation and Coordination With Indian Tribal Governments 

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian Tribes and have determined that the rule does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The rule does not involve or affect Indian Tribes in any way. 

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

On May 18, 2001, the President issued Executive Order 13211 which 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. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. 

### National Environmental Policy Act 

                    No environmental impact statement is required for this rule since agency decisions on proposed Tribal or State AMLR plans and revisions thereof are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4321*et seq.*) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).                 

### Paperwork Reduction Act 

                    This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501*et seq.*).                 

### Regulatory Flexibility Act 

                    The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601*et seq.*). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.                           ( print page 54493)    

### Small Business Regulatory Enforcement Fairness Act 

This rule is not a major rule under 5 U.S.C. 804(2) of the Small Business Regulatory Enforcement Fairness Act. This rule: 

a. Does not have an annual effect on the economy of $100 million. 

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. 

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. 

This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. 

### Unfunded Mandates 

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. 

# List of Subjects in 30 CFR Part 906

      - Abandoned mine reclamation programs
      - Intergovernmental relations
      - Surface mining
      - Underground mining

Dated: August 12, 2005. 

Allen D. Klein, 

Regional Director, Western Regional Coordinating Center. 

[FR Doc. 05-18329 Filed 9-14-05; 8:45 am] 

BILLING CODE 4310-05-P