61194 Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Rules and Regulations 

1See OSM Directive STP–1 (July 31, 2000) at 4.e, 

4.f, and 4.1. 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 732 

RIN 1029–AC06 

Revisions to the State Program 

Amendment Process 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSM), are revising our regulations 

pertaining to the processing of State 

program amendments submitted by a 

State for approval under the Surface 

Mining Control and Reclamation Act of 

1977 (SMCRA or the Act). The specific 

regulations being revised govern the 

standards for determining when 

proceedings that lead to the substitution 

of Federal enforcement for all or part of 

an approved State program should be 

initiated because of the State’s failure to 

amend its program as directed. These 

revisions provide us with the discretion 

to consider additional relevant factors 

regarding the performance of the State 

in effectively maintaining its program 

before determining that proceedings 

leading to the substitution of Federal 

enforcement are warranted. We are also 

revising our regulations that govern the 

time periods and schedule for 

processing State program amendments. 

EFFECTIVE DATE: November 21, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Andrew DeVito, Office of Surface 

Mining Reclamation and Enforcement, 

MS–252–SIB, U.S. Department of the 

Interior, 1951 Constitution Avenue, 

NW., Washington, DC 20240; 

Telephone: 202–208–2701. E-mail: 

adevito@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background Information on the 

Rulemaking 

II. Discussion of the Revisions and Our 

Response to the Comments Submitted 

III. Procedural Matters and Required 

Determinations for This Rule 

I. Background Information on the 

Rulemaking 

Why are we revising our regulations? 

On December 3, 2003 (68 FR 67776), 

we published proposed revisions to our 

regulations that govern the processing of 

State program amendments submitted 

by a State for approval under SMCRA. 

We proposed the revisions because of a 

perceived need to provide OSM with 

discretion to resolve issues affecting 

approved State regulatory programs, 

their maintenance, and amendment. The 

revisions will allow us to focus our 

attention and resources on State 

program deficiencies that have adverse 

on-the-ground effects, or indicate that 

the State may not have the capability or 

intent to effectively administer and 

maintain all or part of its approved 

program. Our experience in processing 

State program amendments over the 

past 20 years has demonstrated a need 

for greater discretion when working in 

partnership with the States to maintain 

an effective nationwide program for the 

regulation of surface coal mining and 

reclamation operations. Recent 

developments with regard to the 

availability of future funding for States 

with approved programs have added to 

the need for revising our regulations. 

These reasons are discussed in greater 

detail in Section II where we describe 

the revisions we are making, the 

comments received on the proposed 

revisions, and our response to them. 

Before proceeding to Section II, we 

would like to provide some of the 

background information necessary for a 

better understanding of the regulatory 

plan established by SMCRA and the 

need for the revisions we are adopting 

today. 

What is an approved State program? 

Section 503 of SMCRA grants each 

State in which there are or may be 

surface coal mining and reclamation 

operations conducted on non-Federal 

lands the right to assume exclusive 

jurisdiction (primacy) over those 

operations. To assume primacy, the 

State must submit to the Secretary of the 

Interior (Secretary) for approval, a State 

program that demonstrates that the State 

has the capability for carrying out the 

provisions of SMCRA. As of the date of 

this rulemaking, 24 States have primacy. 

The implementing regulations at 30 CFR 

part 732 (hereinafter referred to as Part 

732) provide the criteria and procedures 

for decisions to approve or disapprove 

submissions of State programs. 

What is a State program amendment? 

Although SMCRA does not 

specifically address the State program 

amendment process, by regulation at 

§ 732.17, we provided the criteria and 

procedures for amending State programs 

in anticipation of a need to modify the 

programs as conditions or national rules 

change. For various reasons, such as 

legislative changes to the provisions of 

SMCRA, litigation resulting in adverse 

court decisions, or changes in coal 

mining technology, we are required to 

revise our regulations. As a result, all 24 

States with approved State programs 

may be required to amend their 

programs in order to be ‘‘no less 

effective’’ than the OSM regulatory 

program. Also, States may decide to 

amend their programs on their own 

initiative. 

If we determine that a State program 

amendment is necessary, then, as 

required by § 732.17(d), we must notify 

the State regulatory authority of the 

need to amend its approved program. 

Within 60 days after notification, the 

State must submit (1) a proposed 

written amendment, or (2) a description 

of an amendment and a timetable for 

enactment that is consistent with 

established administrative or legislative 

procedures in the State. Pursuant to 

§ 732.17(f)(2), the Director of OSM 

(Director) must begin proceedings under 

30 CFR part 733 (hereinafter referred to 

as Part 733) if the State regulatory 

authority does not submit the proposed 

amendment or a description and 

timetable within the 60 days, does not 

subsequently comply with the 

submitted timetable, or if the 

amendment is not approved. 

Another situation in which the 

Director may be required to begin Part 

733 proceedings under 30 CFR 

732.17(f)(2) involves an obligation 

called a ‘‘required amendment.’’ When 

a deficiency has been identified in a 

State program and a State’s proposed 

amendment to remedy that deficiency is 

incomplete, (i.e., when it fails to include 

all necessary elements or supporting 

documentation but does not actually 

conflict with the corresponding Federal 

requirement), we issue a final rule 

establishing additional requirements 

that the State must meet by submitting 

a new amendment. The new 

amendment, called a ‘‘required 

amendment,’’ must resolve any 

deficiencies and noted inconsistencies. 

We consider a final rule imposing a 

‘‘required amendment’’ to be the 

equivalent of the Part 732 notification 

required by § 732.17(c) and (d) and, 

therefore, subject to the provisions of 

§ 732.17(f)(2) if the State fails to comply 

with the terms of a required 

amendment.1

What is a Part 733 proceeding? 

If the Director has reason to believe 

that a State is not effectively 

implementing, administering, 

maintaining, or enforcing any part of its 

approved State program, then, under 

§ 733.12(b), the Director must promptly 

notify the State regulatory authority in 

writing. The notification must provide 

sufficient information to allow the State 

Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Rules and Regulations 61195 

2For an example of a required State program 

amendment, see 30 CFR 938.16(qqq) requiring that 

‘‘[b]y January 6, 1998, Pennsylvania * * * submit 

a proposed amendment to * * * require that any 

applications for permit renewal be submitted at 

least 120 days before the permit expiration date.’’

Also, see 30 CFR 948.16(lllll) requiring that ‘‘[b]y 

February 20, 2001, West Virginia must submit 

either a proposed amendment or a description of an 

amendment to * * * provide that * * * soil 

substitute material * * * be equally suitable for 

sustaining vegetation as the existing topsoil and the 

resulting medium is the best available in the permit 

area to support vegetation.’’

to determine what portions of the 

program the Director believes are not 

being effectively implemented, 

administered, maintained, or enforced; 

provide the reasons for such belief; and 

specify the time period for the State to 

accomplish any necessary remedial 

actions. If, after certain hearing 

procedures, the Director finds under 

§ 733.12(e) 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 must take one of 

the following actions. The Director must 

either initiate direct Federal 

enforcement of all or part of the State 

program; or recommend to the Secretary 

that he/she withdraw approval of the 

State program, in whole or in part, and 

establish a Federal program for the 

State. 

What are the consequences of a Part 733 

Proceeding? 

The substitution of Federal 

enforcement under § 733.12(e) for all or 

part of an approved State program 

results in substantial disruption to the 

State, the Federal government, and the 

coal industry. We have initiated a Part 

733 action ten times in our history. We 

initiated action under Part 733 in 

Oklahoma (1981, 1983, and 1993), 

Kansas (1983), Tennessee (1983), 

Montana (1993), Utah (1995), West 

Virginia (2001), Missouri (2003), and 

Ohio (2005). In the Montana, Utah, 

Kansas, West Virginia, and the 1981 and 

1993 Oklahoma actions, the issues were 

resolved without Federal takeover of 

any part of the State programs. In three 

cases, we did take over partial 

enforcement of the State program—

Oklahoma in 1984, Tennessee in 1984, 

and Missouri in 2003. In Oklahoma, the 

State took action to address the 

deficiencies, and full authority was 

returned to the State. In Tennessee, after 

we took over partial enforcement, the 

State chose to terminate its approved 

program and repealed the Tennessee 

Coal Surface Mining Act and its 

implementing regulations. We 

promulgated a Federal program for that 

State in 1984. After implementing the 

Federal program, we were required 

under section 504(d) of SMCRA to 

review all the permits issued by the 

State of Tennessee under the standards 

of the new Federal program. All coal 

operators who had posted bonds with 

the State for permits issued under the 

approved State program were required 

to post new bonds payable to the United 

States or execute assignments of the 

existing bonds. See 49 FR 38874 

(October 1, 1984). The substitution of 

the Federal program in Tennessee 

resulted in delays in processing and 

issuing new coal permits in the State. 

With regard to the situation in 

Missouri, on July 21, 2003, the Governor 

of Missouri notified us that the State 

was experiencing difficult budgetary 

and revenue shortfalls. As a result of the 

situation, the Governor requested 

assistance with permit reviews, 

inspection activities, and general 

oversight of the active coal mining 

operations in the State. The Governor 

indicated that he was hopeful his 

request would be temporary and that he 

would continue to work with the State 

legislature in an attempt to assure 

adequate funding for all State program 

responsibilities. 

On August 4, 2003, we notified the 

Governor that we were obligated, in 

accordance with § 733.12(e), to 

substitute Federal enforcement for those 

portions of the Missouri program that 

were not fully funded and staffed. We 

cited problems with the State’s 

implementation of the Missouri program 

in several areas including inspection, 

enforcement, permitting, and bonding 

activities. As a result of substituting 

Federal enforcement, we became 

responsible for, among other things, 

approximately 40 permitting actions, 24 

inspectable units, and an unsuitability 

petition filed on October 20, 2003. 

Missouri recently addressed the 

issues leading to the substitution of 

Federal enforcement by completing 

certain remedial actions. On May 27, 

2005, the Governor petitioned OSM for 

the termination of Federal enforcement, 

we are in the process of reviewing the 

petition. For more details on the Part 

733 action in Missouri, see 68 FR 50944, 

August 22, 2003, and 69 FR 19927, 

April 15, 2004. 

The most recent Part 733 action was 

initiated on May 4, 2005, when we sent 

a letter to the State of Ohio concerning 

problems with its alternative bonding 

system. That matter is still pending. 

While the Tennessee Federal program 

resulted from the termination of the 

State program by the State, and Federal 

enforcement in Missouri resulted from 

budgetary problems within the State, 

and neither resulted from a delinquent 

State program amendment, both provide 

an illustration of the difficulties and 

hurdles we face when we are required 

to take over a State program or 

substitute partial Federal enforcement. 

What are the problems with the current 

regulations? 

As previously mentioned, our 

regulations at § 732.17(f)(2) require us to 

begin proceedings against a State under 

Part 733 when the State fails to (1) 

submit a requested amendment or 

description and timetable for enactment 

within 60 days from the receipt of 

notification, (2) comply with the 

submitted timetable, or (3) obtain 

approval of the program amendment. 

While there may be circumstances in 

which the substance of an outstanding 

State program amendment is such that 

the State’s failure to make the required 

submissions or obtain approval of the 

amendment may warrant proceedings 

under Part 733, that is not the case in 

most instances. As required by section 

503(a)(1)–(7) of SMCRA and 30 CFR 

731.14(g), each State program is 

required to contain approximately 17 

systems involving permitting, lands 

unsuitability petitions, administrative 

and judicial review, inspection and 

enforcement, civil penalties, etc. Most 

deficiencies in State programs that we 

identify are either minor in nature or do 

not render any major system within an 

approved State program inoperable or 

ineffective, in whole or in part.2

Nevertheless, under the standards of 

§ 732.17(f)(2), the Director has no 

discretion and must begin proceedings 

under Part 733. 

The standards for beginning Part 733 

proceedings in all other circumstances 

are found at § 733.12(b), which specifies 

that: 

If the Director has reason to believe that a 

State is not effectively implementing, 

administering, maintaining or enforcing any 

part of its approved State program, the 

Director shall promptly notify the State 

regulatory authority in writing. 

By requiring the commencement of a 

Part 733 proceeding, the provisions of 

§ 732.17(f)(2) seem to create an 

irrebuttable presumption that, under 

§ 733.12(b), the ‘‘Director has reason to 

believe that a State is not effectively 

implementing, administering, 

maintaining or enforcing any part of its 

approved State program’’ when the 

timetable for submission has not been 

met or the amendment has not been 

approved. Once we initiate proceedings 

under Part 733, the Director may not 

substitute direct Federal enforcement 

for all or part of the State program or 

61196 Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Rules and Regulations 

recommend to the Secretary that he/she 

withdraw approval of the State program, 

unless the Director makes the findings 

required by § 733.12(e). In that regard, 

the Director must find that the State has 

both failed to implement, administer, 

maintain or enforce effectively all or 

part of its approved State program, and 

has not demonstrated its capability and 

intent to administer the State program. 

In a situation where there is only one 

outstanding amendment that is 

administrative in nature, with no 

resulting adverse on-the-ground effects, 

it is unlikely that the Director would be 

able to make the two findings required 

by § 733.12(e); nevertheless, under the 

current regulations, the Director would 

still be required to begin Part 733 

proceedings. 

How were the regulations in § 732.17(f) 

developed? 

The regulations in § 732.17(f) were 

proposed on September 18, 1978 (43 FR 

41662, 41678) and issued as final rules 

on March 13, 1979 (44 FR 14902, 

14967), prior to OSM’s having any 

experience in processing State program 

amendments. Section 732.17(f) was 

written under the assumption that, once 

a State had an approved State program, 

revisions to that program would be few 

and far between. In fact, while section 

503 of SMCRA sets forth detailed 

information on the initial submission, 

resubmission, and approval of State 

programs, no detailed guidance is 

provided for amending an approved 

State program. The only place in 

SMCRA where amendments to 

approved State programs are discussed 

is in section 102(i) which states that one 

of the purposes of SMCRA is to ‘‘assure 

that appropriate procedures are 

provided for * * * the public 

participation in the development, 

revision, and enforcement of 

regulations, standards, reclamation 

plans, or programs established by the 

Secretary or any State under this Act.’’

The 1979 regulations at § 732.17(f)(1) 

specified that: 

If the State regulatory authority does not 

propose an amendment within 60 days from 

the receipt of the notice, or the amendment 

is not approved under this Paragraph, the 

Director shall begin proceedings under 30 

CFR [part] 733, to either enforce that part of 

the State program affected or withdraw 

approval, in whole or in part, of the State 

program and implement a Federal program. 

We proposed revising § 732.17(f)(1) 

on December 4, 1981 (46 FR 59482, 

59487) because of the ‘‘difficult 

administrative burden’’ it imposed on 

the States by requiring them to submit 

a written amendment within 60 days 

after notification by the Director. The 

1981 proposed revision allowed the 

State the option of either submitting the 

State program amendment within 60 

days ‘‘or a description of an amendment 

to be proposed that meets the 

requirement of the Act, and this chapter, 

and a timetable for enactment which is 

consistent with established 

administrative or legislative procedures 

in the State.’’ Some States, such as West 

Virginia, must have their regulations 

approved by the State legislature. One 

comment was submitted on the 

proposed revision and it was in support 

of the change. The proposed revision 

was adopted on June 17, 1982 (47 FR 

26358) and it is the language that is 

currently in § 732.17(f)(2). 

Why are so many State program 

amendments required? 

As previously indicated, the 

regulations in Part 732 were most likely 

written under the assumption that, once 

a State program was approved, there 

would be few amendments required. 

Unfortunately, that has not been the 

case. The main reason for this is that 

nearly every time we issue a substantive 

Federal regulation, it ends up in 

litigation. As the United States Court of 

Appeals for the District of Columbia 

Circuit stated in 1991 in National 

Wildlife Federation v. Lujan, 950 F.2d 

765, 767 (D.C. Cir. 1991), ‘‘[a]s night 

follows day, litigation follows 

rulemaking under this statute.’’ The 

ongoing litigation has resulted in a 

substantial number of revisions to the 

Federal regulations. 

Shortly after the permanent program 

rules were issued in 1979, challenges to 

them were filed in court by the coal 

industry, several States, and citizen and 

environmental groups. The court 

resolved those challenges in three 

opinions issued in 1980. While those 

opinions were on appeal to the United 

States Court of Appeals for the District 

of Columbia Circuit, OSM announced 

that it would promulgate revised 

regulations in order to allow the States 

and operators greater flexibility in how 

they achieved compliance with SMCRA. 

The main thrust of the revisions was a 

change from regulations that contained 

design criteria to those that contained 

performance standards. The revised 

regulations were in turn challenged by 

various citizens and environmental 

groups as well as coal industry 

representatives. Some challenged rules 

were upheld, while others had to be 

rewritten by OSM. Each time a rule had 

to be rewritten, States had to amend 

their programs. Currently, two 

significant OSM rules are the subject of 

pending litigation (Valid Existing Rights 

and Ownership and Control). Both will 

require the submission of State program 

amendments from the 24 States with 

approved programs. 

Beginning in 1991, we have tracked 

the number of State program 

amendments processed each year in our 

annual report. In the past 14 years, 

1991–2004, a total of 1378 State 

program amendments (proposed and 

final) have been published in the 

Federal Register, for an average of 

approximately 100 per year. Each State 

program amendment may contain more 

than one issue. A December 27, 2001, 

final rule (66 FR 67010) issued on a 

Pennsylvania State program amendment 

analyzed over 140 separate issues and 

ordered the State to submit an 

additional 47 required amendments. 

Recently, a final rule (70 FR 8002; 

February 16, 2005) issued on a Montana 

State program amendment analyzed 

revisions to nine sections of the 

Montana Code Annotated. These 

examples give an indication of the work 

involved for both the States and OSM in 

maintaining State programs. This 

amount of work was never 

contemplated when the provisions of 

§ 732.17(f) were promulgated in 1979 or 

were revised in 1982. 

We believe that, in situations where 

the State has not submitted and 

obtained approval of an amendment 

within certain time periods, a less 

disruptive and more effective way to 

obtain the delinquent amendment is to 

continue discussions with the State, for 

a reasonable period of time, in an 

attempt to resolve issues rather than to 

automatically begin formal proceedings 

under Part 733. To automatically begin 

proceedings under Part 733, as currently 

required by § 732.17(f)(2), damages the 

working relationship we have with a 

State that has voluntarily agreed to work 

in partnership with OSM to implement 

and administer the provisions of Title V 

of SMCRA. This is particularly so when 

the nature of the delinquent amendment 

does not warrant such action. 

II. Discussion of the Revisions and Our 

Response to the Comments Submitted 

What are the revisions to § 732.17(f)(2)? 

Under the existing regulation in 

§ 732.17(f)(2), the Director is required to 

begin proceedings either to enforce that 

part of the State program affected or to 

recommend to the Secretary that he/she 

withdraw approval, in whole or in part, 

and implement a Federal program, if (1) 

the State fails to submit a requested 

amendment or description and 

timetable for enactment within 60 days 

from the receipt of notification, (2) the 

State fails to comply with the submitted 

Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Rules and Regulations 61197 

timetable, or (3) the amendment is not 

approved. 

In addition to making certain nonsubstantive editorial changes for clarity, 

this rule revises that requirement by 

adding the words ‘‘if the Director has 

reason to believe that such action is 

warranted because the State is not 

effectively implementing, 

administering, maintaining or enforcing 

all or part of its approved State 

program.’’ The revised rule language in 

§ 732.17(f)(2) will read as follows: 

If the State regulatory authority does not 

submit the information required by 

paragraph (f)(1), or does not subsequently 

comply with the submitted timetable, or if 

the resulting proposed amendment is not 

approved under this section, then the 

Director must begin proceedings under 30 

CFR part 733 if the Director has reason to 

believe that such action is warranted because 

the State is not effectively implementing, 

administering, maintaining or enforcing all or 

part of its approved State program. 

By adding the words ‘‘if the Director 

has reason to believe that such action is 

warranted because the State is not 

effectively implementing, 

administering, maintaining or enforcing 

all or part of its approved State 

program,’’ we are adopting the same 

standard set forth in § 733.12(b) that is 

used for commencing a Part 733 

proceeding in all other situations. 

Therefore, under the revised 

regulations, in addition to the State’s 

failure to (1) submit a requested 

amendment or description and 

timetable for enactment within 60 days 

from the receipt of notification, (2) 

comply with the submitted timetable, or 

(3) obtain OSM approval of an 

amendment submitted in response to 

the notification under paragraph (f)(1), 

there must also be a determination by 

the Director that commencement of a 

Part 733 proceeding is warranted 

because of circumstances that tend to 

indicate that the State is not effectively 

implementing, administering, 

maintaining or enforcing all or part of 

its approved State program. Those 

circumstances may be that one 

amendment of critical importance has 

been outstanding for a short period of 

time or they may be that a series of noncritical amendments have been 

outstanding for a long period of time 

with little or no effort on the part of the 

State to amend its program. Under our 

revision, the mere failure to meet a 

timetable, by itself, will no longer be 

sufficient to require the commencement 

of a Part 733 proceeding. 

In the proposed rule, we had included 

a cross-reference to § 732.17(h)(8) in 

§ 732.17(f)(2). Section 732.17(h)(8) 

provides for the submission of revised 

State program amendments when the 

original submission is not approved. 

Section 732.17(f)(2), as it currently 

stands, is silent on the submission of 

revised amendments submitted 

pursuant to § 732.17(h)(8). There was no 

discussion of the inclusion of the crossreference in the proposed rule, but the 

intent was to add clarity to the 

regulations by tying the two provisions 

together. After further consideration, we 

have concluded that, for two reasons, 

the cross-reference should not be 

included in the final rule language. 

First, the cross-reference is unnecessary 

because § 732.17(f)(2) pertains to a 

situation in which an amendment is 

‘‘not approved under this section.’’ The 

term ‘‘this section’’ refers to all of 

§ 732.17, which includes paragraphs 

(a)–(h). 

Second, there are situations in which 

our decision not to approve an 

amendment or amendment provision 

does not create an obligation on the part 

of the State to resubmit a revised 

version of the amendment or 

amendment provision. Such situations 

can occur when a State submits an 

amendment that, if approved, would 

make the approved State program less 

stringent than the Act or less effective 

than the Secretary’s regulations. Under 

§ 732.17(g), if we do not approve an 

amendment, it does not take effect and 

does not become part of the State 

program. Therefore, in the absence of a 

requirement to submit a new 

amendment, established by OSM in a 

final rule or other Part 732 notification, 

the State has no obligation to submit a 

revised version of an amendment that 

we did not approve. If we included the 

cross-reference to § 732.17(h)(8) in 

§ 732.17(f)(2), and if we made the 

corresponding changes to § 732.17(h)(8) 

that we proposed, then the State would 

be obligated to submit a revised version 

of an amendment that we did not 

approve even if that revision is not 

required to make the State program no 

less stringent than the Act or no less 

effective than the Secretary’s 

regulations. 

One recent example of a situation in 

which there was no need for the State 

to resubmit an amendment that we did 

not approve involved a proposed State 

program amendment providing for the 

construction of durable rock fills with 

erosion protection zones (EPZs). EPZs 

are extensions of underdrains within 

durable rock fills that are used to 

control erosion, dissipate runoff from 

the fill, and enhance the stability of the 

durable rock fill. Under the proposed 

amendment, an EPZ could remain after 

mining if it was approved in the 

reclamation plan. Because the EPZ 

resulted in additional stream loss 

without any apparent environmental 

benefit, the U.S. Environmental 

Protection Agency (EPA) conditioned its 

concurrence in our approval of the 

amendment on the addition of a 

requirement that all EPZs be removed 

after mining. In response to this EPA 

requirement, we did not approve the 

phrase, ‘‘Unless otherwise approved in 

the reclamation plan.’’ In the absence of 

that clause, the remaining portion of the 

proposed State program amendment, 

which we approved, requires operators 

to remove EPZs after mining. Therefore, 

there was no need for the State to 

amend its regulatory program because, 

as provided by 30 CFR 732.17(g), the 

clause that we did not approve never 

became part of the State program. 

Finally, we have inserted the words 

‘‘resulting proposed’’ before 

‘‘amendment’’ in paragraph (f)(2) to 

clarify that the provisions of that clause 

of that paragraph apply only to 

decisions on amendments that States 

propose in response to Part 732 

notifications, not to decisions on 

amendments that States propose on 

their own initiative. This editorial 

clarification does not alter the meaning 

of the existing rule. 

What were the comments submitted on 

our proposed revisions to § 732.17(f)(2)? 

Two commenters stated that the 

proposal is irresponsible, in direct 

conflict with SMCRA, and is contrary to 

law because it is an abrupt reversal of 

agency regulatory policy without a 

rational and adequate basis. They 

asserted that the proposal eliminates a 

former regulation deemed necessary to 

assure proper implementation of 

SMCRA without replacing the removed 

provision with another equally 

permissible and effective mechanism for 

satisfying the Congressional goal. 

We disagree. Federal courts have held 

that an agency’s rules, once adopted, are 

not frozen in place. An agency may alter 

its rules in light of its accumulated 

experience in administering them. An 

agency must, however, offer a reasoned 

explanation for the change. Citizens 

Awareness Network, Inc. v. United 

States, 391 F.3d 338, 352 (1st Cir. 2004) 

(and cases cited therein). If an agency 

changes its course by rescinding a rule, 

it is obligated to supply a reasoned 

analysis for the change beyond that 

which may be required when an agency 

does not act in the first instance. Motor 

Vehicle Mfrs. Ass’n v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29, 42 (1983). 

In reviewing actions by OSM to 

promulgate national rules, a court will 

use the criteria specified in section 

526(a)(1) of SMCRA to determine if the 

61198 Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Rules and Regulations 

3 During calendar year 2004, at least seven 

reauthorization bills (H.R. 3778, H.R. 3796, H.R. 

4529, S. 2049, S. 2086, S. 2208, and S. 2211), were 

introduced in Congress but none were enacted into 

law. As of August 2005, three reauthorization bills 

(H.R. 1600, H. R. 2721, and S. 961) have been 

introduced in Congress but none have been enacted 

into law. 

action was arbitrary, capricious, or 

otherwise inconsistent with law. In 

making that determination, the court 

will look to the authorizing statute, here 

SMCRA, to determine whether Congress 

has directly spoken to the precise 

question at issue. If the statute is silent 

or ambiguous, the court typically defers 

to the agency’s reasoned interpretation 

to determine if the agency’s action is 

based on a permissible construction of 

the statute. Pennsylvania Coal Ass’n v. 

Babbitt, 63 F.3d 231, 236 (3rd Cir. 1995) 

(and cases cited therein). 

SMCRA does not specify any process 

for amending an approved State 

program other than the requirement for 

public participation found in section 

102(i). The existing provisions in 

§ 732.17, including the submission/ 

approval process and time periods, were 

promulgated by OSM as permissible 

under the authority provided in 

SMCRA, but not mandated by SMCRA 

or its legislative history. The process in 

§ 732.17(f)(2) requiring a Part 733 

proceeding was initially proposed in 

1978 and adopted in 1979 before OSM 

had extensive experience in processing 

State program amendments. Neither the 

preamble to the 1978 proposed rule nor 

the preamble to the 1979 final rule gives 

any explanation as to why § 732.17(f)(1) 

required the Director to begin Part 733 

proceedings without first going into the 

reasoned determination required by 

§ 733.12(b) for all other types of State 

deficiencies. The preambles give no 

indication the drafters of the regulations 

ever contemplated the volume of State 

program amendments that would be 

required by OSM, or the possibility that 

a delinquent program amendment might 

be so inconsequential to the 

effectiveness of the approved State 

program that Part 733 proceedings 

would not be warranted. 

Although we are revising a 

longstanding agency standard, one 

based on timetables, we are replacing it 

with an OSM standard that is equally 

longstanding and one more rationally 

related to the findings required by 

§ 733.12(e). The new standard for 

§ 732.17(f)(2) is the same as the standard 

found in § 733.12(b) for determining 

when Part 733 proceedings should be 

initiated for all other types of State 

deficiencies. Adoption of this standard 

will give us the discretion needed to 

consider other relevant factors in 

determining when to initiate Part 733 

proceedings against a State. Those 

factors include the importance of the 

outstanding amendment to the 

effectiveness of the approved State 

program, the effect its absence is having 

on the environment and public health 

and safety, and the lack of any 

reasonable explanation for failing to 

comply with submission requirements. 

Our decision to initiate Part 733 

proceedings will no longer be controlled 

primarily by timetables. 

We proposed our revisions after many 

years of experience in processing State 

program amendments, and with a firm 

understanding of how difficult it can be 

for a State administrative agency to 

submit an amendment compatible with 

the Federal regulation, particularly 

when the submission requires action by 

the State legislature. In the preamble to 

the December 3, 2003, proposed rule (68 

FR 67777), we stated that: 

[I]n situations where the State has not 

submitted and obtained approval of a 

required amendment, a less disruptive and 

more effective way to obtain the required 

amendment is to work with the State at the 

staff level to discuss problems and resolve 

issues rather than automatically begin formal 

proceedings under Part 733. To automatically 

begin proceedings under Part 733, as 

currently required by 30 CFR 732.17(f)(2), 

damages the working relationship we have 

with a State that has voluntarily agreed to 

work in partnership with OSM to implement 

and administer the provisions of Title V of 

SMCRA. 

SMCRA is very clear with regard to 

the State-Federal working relationship. 

Section 101(f) of SMCRA provides that 

the primary governmental responsibility 

for developing, authorizing, issuing, and 

enforcing regulations for surface coal 

mining and reclamation operations 

should rest with the States. Section 

102(g) of SMCRA specifies that one of 

the purposes of SMCRA is to assist the 

States in developing and implementing 

a program to achieve the purposes of 

SMCRA. 

It should be noted that, in support of 

the State-Federal working relationship 

envisioned by SMCRA, section 705(a) 

authorizes the Secretary to make an 

annual grant of up to 50 percent of the 

cost incurred by a State in administering 

and enforcing its approved regulatory 

program (a Title V grant). In addition, if 

a State has an approved State program 

under section 503 of SMCRA, and has 

an approved State Abandoned Mine 

Reclamation Program submitted under 

section 405(b) of SMCRA, then the State 

is entitled to an annual grant under 

section 405(c) for the reclamation of 

abandoned mine lands within the State 

(a Title IV grant). As an example of how 

this works, in Fiscal Year 2004, the 

State of West Virginia received a 

$10,520,169 Title V grant from OSM for 

regulating surface coal mining under its 

approved State program. That sum was 

determined to be 50 percent of the cost 

of regulating surface coal mining within 

West Virginia. The State appropriated 

and spent an additional $10,520,169 of 

its own money to cover the remaining 

50 percent of the regulatory program 

cost. As an inducement to, and in 

consideration for assuming Title V 

regulatory responsibility and spending 

$10,520,169 of its own funds, the State 

received a Title IV abandoned mine 

land reclamation grant of $33,040,900. 

The ability to make Title IV grants 

available is dependent on the collection 

of a reclamation fee established by 

section 402(a) of SMCRA. The fee is 

assessed against each ton of coal 

produced. The authority to collect this 

fee was scheduled to expire on 

September 30, 2004, but was extended 

through June 30, 2005, by Pub. L. 108–

447, then through September 30, 2005, 

by Pub. L. 109–13, and most recently 

through June 30, 2006, by the 

Department of the Interior, 

Environment, and Related Agencies 

Appropriations Act, 2006 (Pub. L. 109–

54). At the writing of this rule, the 

prospects for the reauthorization of the 

reclamation fee beyond that date remain 

uncertain as do the prospects for Title 

IV grants in future years as existing 

funds are disbursed and no additional 

funds are collected.3 If Title IV grant 

money is no longer available, the 

incentive for a State to continue to 

regulate surface coal mining operations 

at considerable expense to the State will 

be diminished. The threat inherent in a 

Part 733 proceeding lies not only in the 

resulting public embarrassment to the 

State but also in the potential loss of its 

approved State program and eligibility 

for Title IV grant money. If Title IV grant 

money is no longer available, the 

leverage we currently have from the 

threat of a Part 733 proceeding and the 

denial of grant money will be 

substantially diminished. 

The possible loss of future Title IV 

grant money, and with it the incentive 

for a State to keep its approved 

regulatory program, provide another 

reason to revise our regulations. The 

revisions will provide the Director with 

the discretion needed to manage the 

State program amendment process and 

resolve issues with the States in a less 

confrontational manner. 

Two commenters stated that the 

proposed rule would eliminate the 

current mandatory obligation 

(nondiscretionary duty) under 

§ 732.17(f)(2) and section 504(a) of 

Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Rules and Regulations 61199 

SMCRA to commence proceedings to 

substitute Federal enforcement for all or 

part of an approved State program in the 

event of a failure on the part of the State 

regulatory authority to amend its 

approved State program. The 

commenters stated that the proposed 

revisions would significantly erode the 

accountability of the individual State 

regulatory programs, and, if adopted, 

would be in direct and irreconcilable 

conflict with the intent of Congress. In 

this regard, one commenter stated, 

Congress intended that the State 

regulatory programs approved under 

sections 503(a)(1)–(7) of SMCRA be 

maintained, administered, and enforced 

consistently with the Secretary’s 

regulations and with the Secretary’s 

mandatory obligations under sections 

504 and 521 of SMCRA. One commenter 

stated that the mandatory duty in 

§ 732.17(f)(2) to initiate a Part 733 

proceeding follows directly from the 

mandatory duty in section 504(a)(3) of 

SMCRA. Where a State fails to make a 

timely submission of a required program 

amendment, it has ‘‘failed to * * * 

maintain its approved State program’’

within the meaning of section 504(a)(3). 

At that point, the commenter stated, 

section 504(a)(3) does not give the 

Secretary discretion regarding what to 

do. It expressly mandates that the 

Secretary ‘‘shall’’ set in motion the 

process for promulgation and 

implementation of a Federal program. 

The commenter stated that the current, 

mandatory version of § 732.17(f)(2) is 

faithful to that mandatory statutory 

duty. The proposed revisions to 

§ 732.17(f)(2), which would make the 

initiation of a Part 733 proceeding 

discretionary, would impermissibly 

conflict with the mandatory duty under 

section 504(a)(3) of SMCRA. 

We disagree. Our revisions to 

§ 732.17(f)(2) do not eliminate the 

Secretary’s mandatory duty under 

sections 504(a)(3) and 521 of SMCRA. 

Section 504(a)(3) requires the Secretary 

to promulgate and implement a Federal 

program for a State if the State ‘‘fails to 

implement, enforce, or maintain its 

approved State program.’’ Section 

521(b) provides for Federal enforcement 

of all or part of an approved State 

program if the Secretary has reason to 

believe that violations of all or any part 

of the State program result from a failure 

of the State to enforce its program 

effectively. The provisions of section 

504(a)(3) are implemented by our 

regulations at 30 CFR Parts 733 and 736; 

and the provisions of section 521(b) are 

implemented by our regulations at 30 

CFR Parts 733, 842, and 843. Those 

regulations are not being revised by this 

rule. 

Our revisions to § 732.17(f)(2) do 

remove the mandatory requirement to 

begin Part 733 proceedings solely on the 

basis of a delinquent State program 

amendment. We are replacing that 

requirement with a process that requires 

a reasoned determination that Part 733 

proceedings are warranted. Revised 

§ 732.17(f)(2) will continue to lead to 

the same proceedings under 

§§ 733.12(b) and (e) as do the existing 

regulations in § 732.17(f)(2), but only 

after the Director has made that 

determination. By inserting the term 

‘‘warrant’’ in § 732.17(f)(2), our 

revisions more closely align the 

standard for action under § 732.17(f)(2) 

with the standards of § 733.12(a)(2), 

‘‘facts which * * * establish the need 

for evaluation,’’ with the standards of 

§ 733.12(b), ‘‘reason to believe that a 

State is not effectively * * * 

maintaining * * * its approved State 

program,’’ and with the factors specified 

in § 733.13 for determining whether to 

substitute Federal enforcement. 

We do not believe that our revisions 

will erode the accountability of the 

individual States. The revised 

provisions in § 732.17(f)(2) incorporate 

Part 733 by reference and, therefore, 

provide for Federal enforcement when 

required. Section 733.12(a)(1) requires 

the Director to evaluate the 

administration of each State program 

annually, and section 733.12(a)(2) 

allows any interested person to request 

a State program evaluation. There 

remain, therefore, effective safeguards 

for State accountability. 

One commenter stated that our 

proposed rule implicitly assumes that 

OSM would not have sufficient ‘‘reason 

to believe’’ that a State is violating 

SMCRA even though the State has failed 

to correct the deficiencies in OSM’s Part 

732 notification for more than 60 days, 

in violation of the deadline in 

§ 732.17(f)(2). The commenter stated 

that this is an even more extreme view 

than OSM took in West Virginia 

Highlands Conservancy v. Norton, 161 

F. Supp. 2d 676 (S.D. W. Va. 2001). In 

that case, in the government’s June 29, 

2001, Memorandum in Support of Its 

Motion to Dismiss, we stated that: 

When a State fails to correct the 

deficiencies identified in the Part 732 

notification to the State, OSM has reason to 

believe that the State is failing to effectively 

maintain its approved program, which is one 

of the thresholds for taking action under 30 

CFR 733.12(b). 

We acknowledge that in the past we 

have taken that position. We took it 

because the language in existing 

§ 732.17(f)(2) requires the 

commencement of Part 733 proceedings. 

Part 733 requires the Director to notify 

the State in writing ‘‘if the Director has 

reason to believe that a State is not 

effectively * * * maintaining * * * its 

approved State program.’’ By 

implication, therefore, a failure under 

§ 732.12(f)(2) results in ‘‘a reason to 

believe’’ under Part 733. Long 

experience has shown that if the State 

fails to meet a deadline or otherwise 

comply with the requirements of 

§ 732.12(f)(2), there may be reasons for 

the failure which indicate that the 

failure is something other than the 

State’s inability or unwillingness to 

effectively maintain any part of its 

approved State program. In the past, 

those reasons have included 

disagreements with OSM on the 

interpretation and intent of the program 

amendment that was submitted, State 

legislative and regulatory procedures 

that prohibited the State from 

complying in a timely fashion, and 

concerns by the State about complying 

with a Part 732 notification based on a 

Federal rule that is being litigated by 

both the environmental community and 

the coal industry. 

Since 1982, the regulations in Part 

733, which implement the provisions of 

section 504(a) of SMCRA, have used the 

terms ‘‘effectively’’ in §§ 733.12(b) and 

(e), and ‘‘adequately’’ in § 733.12(d) 

indicating that something less than 

perfect performance by the State is 

acceptable. In other words, not all 

defects in maintenance rise to the level 

where the Director has ‘‘reason to 

believe’’ that the State is failing to 

effectively maintain its program. To 

warrant action under Part 733, 

something more is needed than the mere 

failure to meet a timetable. Factors that 

could raise the defect in maintenance to 

an unacceptable level might be the 

importance of the outstanding 

amendment to the integrity and 

effectiveness of the State program, the 

effect its absence is having on the 

environment and public health and 

safety, or the lack of any mitigating 

circumstances for failing to comply with 

submission requirements. It is precisely 

because not all defects in maintenance 

do in fact provide a ‘‘reason to believe,’’

and because there may be mitigating 

circumstances for the noncompliance or 

delayed compliance by a State that we 

are revising § 732.17(f)(2) in order to 

eliminate the irrebuttable presumption 

that ‘‘reason to believe’’ exists within 

the scope of § 733.12(b). 

Two commenters stated that the 

current rulemaking is proposed against 

a backdrop of systemic failures, on the 

part of the Secretary and OSM, to 

comply with the current regulatory 

61200 Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Rules and Regulations 

4Section 733.12(b)(1) requires the Director to 

provide the State with sufficient information to 

allow the State to determine what portions of its 

program are not being effectively maintained and 

specify the time period for remedial action. Section 

733.12(c) authorizes an informal conference 

between the parties to discuss the facts or the time 

period for accomplishing remedial action. 

mandate to commence Part 733 

proceedings in the face of a State’s 

refusal to submit required program 

amendments. To back their assertions, 

one commenter referred to a situation in 

the State of West Virginia where the 

State failed for 10 years to submit a 

required amendment to adequately fund 

its bonding program. In that case, 

citizens sued OSM in Federal court 

under the citizen suit provisions of 

section 520 of SMCRA in order to force 

OSM to take over the West Virginia 

bonding program. The second 

commenter referred to an issue in the 

Commonwealth of Kentucky and alleged 

that the Commonwealth had refused, 

over a period of years and in direct 

defiance of repeated OSM demands, to 

amend the State program concerning the 

exemption of public roads from the 

definition of ‘‘affected area.’’

We acknowledge that action under 

§ 732.17(f)(2) has been taken only in 

limited instances even when the 

situation may have called for more 

timely and forceful action. Our 

reluctance to begin Part 733 proceedings 

should not be construed as an 

indication that we took no action to 

remedy State program deficiencies, 

because we dedicate considerable 

resources to oversight and the State 

program amendment process. Typically, 

discussions between OSM and the 

States on program amendments begin 

before submission, and continue 

throughout the review process that 

follows submission of the amendments. 

The communications, negotiations, and 

meetings between the State and OSM 

staff are, in many ways, equivalent to 

those required in §§ 733.12(b) and (c).4

If the issues involved in the amendment 

are complex and/or numerous, the 

‘‘back and forth’’ between the parties 

can be extensive. 

On September 25, 2000, OSM’s Acting 

Director sent a memorandum 

(administrative record document no. 22) 

to OSM’s Regional Directors stating that 

one of the agency’s program priorities 

for Fiscal Year 2001 would be to review 

individual State programs for any 

outstanding amendments. The 

memorandum directed OSM’s Regional 

Offices to survey all State programs to 

determine what amendments or 

portions of amendments were 

outstanding, negotiate specific 

submission dates with the States, and 

make those submission dates a part of 

each State’s Fiscal Year 2001 work plan. 

Since commencement of that initiative, 

considerable progress has been made in 

reducing the backlog of outstanding 

amendments. The fact that OSM 

considered the amendment issue a 

program priority for Fiscal Year 2001, 

and chose to resolve that issue through 

negotiations with each of the 24 States 

rather than use the regulatory process 

established in § 732.17(f)(2), is a further 

indication of our belief that the 

§ 732.17(f)(2) procedures are not 

appropriate for all situations in which 

there is an outstanding program 

amendment. 

The West Virginia bonding issue was 

one of those situations where more 

timely and forceful Federal action was 

called for in order to remedy a 

longstanding problem with the State’s 

alternative bonding program. OSM did 

commence a Part 733 proceeding against 

the State on June 29, 2001, after a 

citizen lawsuit had been filed. As a 

result of the Part 733 proceeding and the 

citizen lawsuit, the State submitted 

program amendments that remedied 

problems with the State’s alternative 

bonding program and the Part 733 

proceeding was terminated on June 20, 

2002. As discussed in greater detail 

below, nothing in the revision to Part 

732 would preclude the filing of a 

similar citizen suit at any time in the 

future. 

With regard to the Kentucky roads 

issue, that matter was resolved by a 

letter dated April 1, 2004, in which we 

notified the Commonwealth of 

Kentucky that we had reconsidered our 

Part 732 letter dated August 22, 1988, 

that required Kentucky to revise its 

definition of ‘‘affected area.’’ In the 

April 1, 2004, letter, we concluded that 

the Kentucky program provisions 

concerning public roads are currently 

no less effective than the counterpart 

Federal provisions. That letter 

illustrates our contention that 

unresolved issues with States over 

delinquent State program amendments 

do not necessarily indicate an 

unwillingness or failure on the part of 

the State to ‘‘maintain’’ its approved 

program. In that instance, there was a 

legitimate issue of whether any 

amendment from the State was really 

required. 

One commenter stated that the Part 

733 regulations give OSM substantial 

discretion over how to address 

deficiencies in the design, enforcement, 

or implementation of State regulatory 

programs. The commenter stated that 

the initiation of a Part 733 proceeding, 

whether pursuant to § 732.17(f)(2) or 

because OSM otherwise has reason to 

believe that a State is not implementing 

or enforcing its approved program, does 

not inexorably result in substituted 

Federal enforcement or ouster of the 

State as the regulatory authority. The 

commenter, citing §§ 733.12(e), 

733.12(g), and 733.13, stated that, before 

deciding whether to institute Federal 

enforcement for all or part of a State 

program, or to recommend complete or 

partial withdrawal of the approved State 

program, OSM must review ‘‘all 

available information’’ and must 

consider a number of factors. The 

commenter stated that there is no 

mandatory duty to take over 

enforcement or to replace a State 

program with a Federal program. Those 

actions may occur only if the Director or 

the Secretary, in his or her discretion, 

makes specific findings. See 

§§ 733.12(e) and (g)(2)(i). The 

commenter stated that the proposed rule 

does not explain why the discretion 

already available under Part 733 is 

insufficient to allow OSM to avoid any 

untoward impacts on its relationships 

with the States. 

With regard to the discretion issue, 

the commenter fails to realize that it is 

the lack of discretion under 

§ 732.17(f)(2) that is at issue. It is the 

commencement of Part 733 proceedings, 

when such proceedings are not 

warranted by the circumstances, that 

injures the working relationship we 

have with the States and wastes both 

State and Federal resources. 

We agree with the commenter that, 

once a Part 733 action has been initiated 

and before Federal enforcement may 

commence, the Director, under 

§ 733.12(e), must be able to find, based 

upon the review of all available 

information, that (1) the State has failed 

to implement, administer, maintain or 

enforce effectively all or part of its 

approved State program; and (2) the 

State has not demonstrated its capability 

and intent to administer the State 

program. In most instances, particularly 

those in which a State has submitted an 

amendment that we did not approve, it 

is unlikely that the Director, based upon 

the record, would be able to make both 

findings, particularly the second finding 

that the State has not demonstrated its 

intent to administer the State program. 

The commenter’s argument clearly 

illustrates the problem created by the 

existing regulations. Under 

§ 732.17(f)(2), we are required to begin 

proceedings under Part 733 even when 

the facts tend to indicate that the 

Director does not have ‘‘reason to 

believe’’ under § 733.12(b) and will be 

unable to make the findings required by 

§ 733.12(e). This is precisely why we 

propose to revise § 732.17(f)(2) in order 

Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Rules and Regulations 61201 

5Each state is assigned a part number in Title 30 

of the CFR, and in that part at section .16, we codify 

the requirement to submit an amendment. For 

examples, see 30 CFR 914.16 (Indiana), 948.16 

(West Virginia), and 950.16 (Wyoming). 

to prevent the Director from having to 

begin Part 733 proceedings in situations 

where proceedings do not appear to be 

warranted by the circumstances. 

One commenter stated that the 

proposed revision is an indirect attack 

on congressional encouragement of 

citizen participation in, and 

enforcement of, SMCRA because 

citizens can only enforce 

nondiscretionary duties against OSM 

and primacy States. Another commenter 

stated that the true intended effect of the 

proposed rule is to limit and weaken the 

citizen suit remedy under SMCRA and 

that OSM’s true agenda is not proFederalism, but anti-citizen suit. 

OSM disagrees. Our revisions do not 

in any way prohibit citizens from 

participating in the enforcement of 

SMCRA. For example, under 

§ 733.12(a)(2), any interested person 

may request that the Director evaluate a 

State program. Section 733.12(a)(2) 

specifies that: 

Any interested person may request the 

Director to evaluate a State program. The 

request shall set forth a concise statement of 

the facts which the person believes 

establishes the need for evaluation. The 

Director shall verify the allegations and 

determine within 60 days whether or not the 

evaluation shall be made and mail a written 

decision to the requestor. 

If the concise statement of facts 

submitted by the interested person 

establishes the need for an evaluation, 

the Director must begin proceedings 

under § 733.12(b), which specifies that: 

If the Director has reason to believe that a 

State is not effectively implementing, 

administering, maintaining or enforcing any 

part of its approved State program, the 

Director shall promptly notify the State 

regulatory authority in writing. The 

Director’s notice shall—

(1) Provide sufficient information to allow 

the State regulatory authority to determine 

what portions of the program the Director 

believes are not being effectively 

implemented, administered, maintained, or 

enforced; 

(2) State the reasons for such belief; and 

(3) Specify the time period for the State 

regulatory authority to accomplish any 

necessary remedial actions. 

Finally, our revisions to § 732.17(f)(2) in 

no way affect the right of an individual 

to bring a citizen’s suit under section 

520(a) of SMCRA which provides in 

part as follows: 

* * * any person having an interest which 

is or may be adversely affected may 

commence a civil action on his own behalf 

to compel compliance with this Act—

(1) Against the United States or any other 

governmental instrumentality or agency to 

the extent permitted by the eleventh 

amendment to the Constitution which is 

alleged to be in violation of the provisions of 

this Act or of any rule, regulation, order or 

permit issued pursuant thereto, or against 

any other person who is alleged to be in 

violation of any rule, regulation, order or 

permit issued pursuant to this title; or 

(2) Against the Secretary or the appropriate 

State regulatory authority to the extent 

permitted by the eleventh amendment to the 

Constitution where there is alleged a failure 

of the Secretary or the appropriate State 

regulatory authority to perform any act or 

duty under this Act which is not 

discretionary with the Secretary or with the 

appropriate State regulatory authority. 

Under section 520(a), an individual 

could commence a civil action against 

OSM if the Director failed to initiate a 

Part 733 proceeding against a State 

when such action is warranted based on 

a review of all available information. It 

should be noted that, in those situations 

where the State has submitted an 

amendment and the amendment either 

has not been approved or has been 

approved with a requirement to further 

amend the program, we publish the 

requirement to submit a new 

amendment in the Federal Register and 

codify the requirement in the Code of 

Federal Regulations (CFR) so that 

members of the public have notice of 

the outstanding amendment.5 At any 

time, based on the information 

published in the CFR, an interested 

party, under § 733.12(a)(2), may request 

that the Director conduct an evaluation 

of the State program. In doing so, the 

requestor need only submit a concise 

statement of the facts that the person 

believes establish the need for such an 

evaluation. 

Two commenters stated that OSM 

must measure the adequacy of State 

programs on a part-by-part basis and the 

trigger in Part 732 must be consistent 

with the remedy in Part 733 which 

requires that OSM take over Federal 

administration and partial enforcement 

if any part of an approved State program 

is not being maintained or enforced. The 

commenters stated that, in contrast, the 

proposed rule would make the Part 732 

trigger (i.e., deficient overall State 

performance) inconsistent with the Part 

733 remedy (i.e., takeover of all or part 

of a State program). The commenters 

stated that, under the proposed rule, a 

State could fall well below Federal 

standards in one part of its program, but 

avoid a Federal takeover by maintaining 

adequate ‘‘overall’’ performance of its 

program as a whole. According to the 

commenters, the proposed rule is 

therefore inconsistent with the clear 

language and intent of SMCRA. 

While we disagree with the 

commenters’ analysis, we do agree that 

the language of the proposed rule 

should be clarified. We proposed adding 

the words ‘‘if the Director has reason to 

believe that such action is warranted 

because the State is not effectively 

implementing, administering, 

maintaining or enforcing its approved 

program’’, in order to provide the 

Director with the discretion to 

determine when proceedings should be 

started under Part 733. It was our intent 

under the proposed revision, that the 

State’s failure to submit even a single 

program amendment by a specific date 

would be enough to require the Director 

to begin proceedings under Part 733 if 

that failure would likely result in a 

substantial deficiency in just one part of 

the State program or result in significant 

on-the-ground impacts, even if all else 

in the program were in good order. To 

make this absolutely clear, we are 

revising the language of the proposed 

rule by adding the words ‘‘all or part of’’

to the final rule. The language of 

§ 732.17(f)(2) will then read as follows: 

‘‘if the Director has reason to believe 

that such action is warranted because 

the State is not effectively 

implementing, administering, 

maintaining or enforcing all or part of 

its approved program.’’

One commenter stated that, in 

adopting the 1979 permanent program 

regulations (which contained language 

similar to the current § 732.17(f)(2) but 

required submission of the actual State 

program amendment, rather than a 

timetable for adoption), OSM rejected 

the suggestion that the State program 

amendment process be folded into Part 

733. The commenter stated that this is 

the very outcome now proposed by 

OSM in adopting the Part 733 standard 

of overall effectiveness in determining 

whether to act to sanction a State for a 

knowing failure to maintain program 

currency. 

We disagree. The comments discussed 

in the 1979 preamble (44 FR 14902, 

14967; March 13, 1979) suggested 

relocating the amendment process or 

‘‘appropriate amendment provisions’’

into Part 733 because the amendment 

process should be part of maintaining 

State programs, not part of the overall 

initial State program approval/ 

disapproval process. OSM did not 

accept the suggestions and stated that 

‘‘Part 733 is designed to address the 

State’s actual implementation and 

administrative efforts.’’ Our 1979 

response failed to take into 

consideration that § 733.12(b) 

specifically uses the term ‘‘maintaining’’

and § 733.12(e) uses the term 

‘‘maintain.’’ It is obvious, therefore, that 

61202 Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Rules and Regulations 

one criterion in a Part 733 proceeding 

for determining State program 

effectiveness is maintenance, i.e., 

keeping the State program current 

through the amendment process. The 

existing regulations at § 732.17(f)(2), by 

requiring Part 733 proceedings, 

incorporate Part 733 by reference 

thereby linking Parts 732 and 733 

together. The rule we are promulgating 

today is consistent with the 

understanding that Parts 732 and 733 

are linked. 

One commenter stated that the 

Secretary, in proposing to delink the 

obligation to submit a program 

amendment from the sanctions of 

initiation of Part 733 proceedings, 

violates several aspects of SMCRA, 

including section 521(b), which is 

triggered any time that there is ‘‘reason 

to believe’’ that violations are resulting 

from a failure by the State to enforce a 

program or any part thereof effectively. 

The commenter stated that the failure of 

a State regulatory authority to promptly 

revise a State program when requested 

and to maintain program currency is a 

violation that should trigger a 

mandatory response by the Secretary. 

Further, the commenter argued that 

section 504(a) demands a Federal 

response when any part of a State 

program is not being properly 

administered, precluding the ‘‘overall’’

or ‘‘aggregate’’ approach being proposed 

by OSM in the proposed rule. 

OSM disagrees. The commenter fails 

to realize that section 521(b) applies 

only when the State is failing to enforce 

its approved program. A delinquent 

amendment has yet to become part of 

the approved program, therefore, action 

under section 521(b) is inappropriate. 

With regard to the provisions of section 

504(a) requiring promulgation and 

implementation of a Federal program for 

a State, those provisions are 

implemented by the regulations in Parts 

733 and 736 and their application has 

been previously discussed in response 

to a similar comment. 

One commenter stated that, with 

regard to the language in revised 

§ 732.17(f)(2) which specifies that ‘‘the 

Director must begin proceedings under 

30 CFR part 733 if the Director has 

reason to believe that such action is 

warranted,’’ the belief of the Director 

should be documented in writing within 

a given time frame. 

We agree. The Director’s reason to 

believe would be documented when the 

Director sends notification to the State 

pursuant to § 733.12(b)(1) which 

requires the Director to provide 

sufficient information to allow the State 

regulatory authority to determine what 

portions of the State program the 

Director believes are not being 

effectively implemented, administered, 

maintained, or enforced, and state the 

reasons for such belief. 

One commenter stated that the reason 

proffered for removing the existing 

provisions is not a legitimate basis for 

action and is contrary to legislative 

intent. According to this commenter, 

even if we assume that the 

administrative record demonstrated that 

the existing regulatory framework has 

been unduly disruptive or costly, 

nowhere in the legislative history of 

SMCRA is administrative inconvenience 

or cost of implementation a value 

permitted to be considered, or a value 

to be exalted over the goals of assuring 

consistent implementation of SMCRA 

among the States. Instead, the 

commenter stated, throughout the 

legislative history and structure of 

SMCRA, the overarching goal of 

assuring consistency in adoption and 

implementation of SMCRA comes 

through. 

We disagree. Federal rulemaking is 

governed by numerous provisions in 

addition to those found in SMCRA. For 

example, sections 3(f) and 6(a)(B) and 

(C) of Executive Order 12866—

Regulatory Planning and Review (58 FR 

51735; October 4, 1993), require a 

consideration of the costs and benefits 

in the development of regulations as 

well as their impacts on grants and the 

recipients thereof. Because Federal 

budgets are prepared two years in 

advance; the commencement of 

unanticipated Part 733 proceedings 

could result in funding shortfalls even 

if such proceedings did not result in 

Federal enforcement, and, therefore, 

should not be undertaken without 

regard for costs or the necessity of the 

action. Under the current regulations, 

OSM is required to begin a Part 733 

proceeding if there is a delinquency of 

even one day. We think it prudent to 

allow more discretion to determine 

when to commence a Part 733 

proceeding. 

One commenter criticized our 

justifications for the proposed rule and 

stated that, despite the fact that the 

mandatory language in § 732.17(f)(2) has 

been on the books for nearly 25 years, 

OSM now contends that there is a 

problem with § 732.17(f)(2), namely that 

it is too disruptive. The commenter 

stated that the proposed rule mentions 

two varieties of disruption: (1) The 

‘‘substantial disruption to the State, the 

Federal government, and the coal 

industry that results from the 

substitution of Federal enforcement,’’

and (2) interference with ‘‘the working 

relationship OSM has with a State.’’ The 

commenter recounted OSM’s history 

regarding Part 733 proceedings in which 

OSM did take over partial enforcement 

of a State program and stated that there 

is no current problem with substituted 

Federal enforcement, and even if there 

is, it does not result from the fact that 

initiation of Part 733 proceedings 

required under § 732.17(f)(2) is 

mandatory. The commenter further 

stated that, to the extent the proposed 

rule is intended to avoid the substantial 

disruption of substituted Federal 

enforcement, it is a non-solution to a 

non-problem. Another commenter 

criticized our statement that a Part 733 

proceeding as required by § 732.17(f)(2) 

damages the working relationship we 

have with a State that has voluntarily 

agreed to work in partnership with OSM 

to implement and administer the 

provisions of Title V of SMCRA. The 

commenter stated that OSM did not and 

is unable to present a single example 

supporting this assertion. The 

commenter stated that, in 26 years, OSM 

has initiated just nine Part 733 actions 

and that the rarity of these actions and 

the extreme rarity of Part 733 actions 

initiated pursuant to § 732.17(f)(2) show 

that proceedings initiated under 

§ 732.17(f)(2) have not created problems 

with Federal-State relationships. The 

commenter further stated that OSM 

should not be wasting its resources and 

rulemaking efforts on hypothetical 

problems for which there are no real 

world examples and that without real 

world examples one cannot determine 

whether the proposed amendment or 

some other course of action is the 

proper solution. 

We disagree. The potential for 

unwarranted disruption exists as long as 

the requirements of existing 

§ 732.17(f)(2) remain unchanged. 

Section 732.17(f)(2) requires us to 

automatically initiate Part 733 

proceedings without taking into 

consideration an individual State’s 

effectiveness in maintaining its 

approved program. Had OSM initiated a 

Part 733 proceeding each time a minor 

State program amendment was 

delinquent by even one day, as required 

by § 732.17(f)(2), the disruption in 

Federal-State relations would have been 

significant and the complaints from the 

States and Congressional delegations 

noticeable. While the examples of Part 

733 actions given in the proposed rule 

(Tennessee and Missouri) did not result 

from actions commenced as a result of 

§ 732.17(f)(2), they do provide an 

illustration of the disruptive effects 

resulting from the substitution of 

Federal enforcement. 

Eliminating the requirement to 

automatically begin Part 733 

proceedings when the circumstances 

Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Rules and Regulations 61203 

surrounding a delinquent State program 

amendment do not warrant such action, 

will help us preserve the positive 

working relationship we have 

developed with State regulatory 

authorities over the years. The revisions 

are also consistent with the 

requirements of Executive Order 13132 

on Federalism (64 FR 43255; August 10, 

1999). Section 3(c) of Executive Order 

13132 states that ‘‘[w]ith respect to 

Federal statutes and regulations 

administered by the States, the national 

government shall grant the States the 

maximum administrative discretion 

possible. Intrusive Federal oversight of 

State administration is neither necessary 

nor desirable.’’

One commenter stated that, if OSM 

had a reputation for strictly complying 

with its mandatory duty under 

§ 732.17(f)(2), the disincentive of a Part 

733 proceeding would spur States to 

comply with the program amendment 

submission deadlines in § 732.17(f)(1). 

Conversely, the failure of States to take 

the 60-day submission deadline 

seriously may simply be a symptom of 

OSM’s failure to abide by its mandatory 

duty under § 732.17(f)(2). 

We cannot say if strictly complying 

with the mandatory requirements under 

§ 732.17(f)(2) would have resulted in all 

States consistently meeting the 

timelines for submitting a State program 

amendment. Each State’s rulemaking 

process is different; one State may 

require its rules to be approved by its 

State legislature while another State 

does not. It is just as likely that, had we 

initiated a Part 733 proceeding when 

there was a delinquent State program 

amendment, the State might have 

shifted resources from a higher priority 

issue in order to prepare for the 

informal conference authorized under 

§ 733.12(c) or the public hearing under 

§ 733.12(d), or decided that, given the 

number of amendments being required 

and the time allowed, it would be better 

for the State to give up its regulatory 

program. 

What are the revisions to 

§§ 732.17(h)(1)–(13) and what were the 

comments submitted? 

Section 732.17(h)(1) 

Paragraph (h)(1) currently requires 

that we publish in the Federal Register 

a notice of receipt of a State program 

amendment within 10 days after 

receiving it from the State. We propose 

increasing the time from 10 days to 30 

days because we have found it nearly 

impossible to meet the 10-day time 

period. When the regulations were 

originally written, State program 

amendments were received and 

processed at OSM’s Headquarters in 

Washington, DC. In 1995, the authority 

to process State program amendments 

was delegated to OSM’s three regional 

offices so that they could work more 

closely with the States in their regions. 

This has increased the amount of time 

needed to obtain final clearance from 

the Washington office for publication in 

the Federal Register. Also, the Office of 

the Federal Register needs four days 

after receipt to schedule the publication 

of proposed and final rules. That leaves 

only six days for OSM’s regional offices 

to draft a Federal Register notice and 

transmit it by mail to the Washington 

office for additional clearance prior to 

publication. 

One commenter was opposed to the 

extension of the 10-day period to 30 

days as being unnecessary and 

unjustified. The commenter stated that 

it is ironic that, in an era of 

simultaneous electronic submission of 

data, the agency has become less 

capable of timely transmitting and 

processing of information. 

We disagree. While most documents 

can be transmitted electronically, the 

Office of the Federal Register still 

requires three hard copies of a 

document with an original signature 

which means that the document needs 

to be hand carried or mailed to the 

Office of the Federal Register. The 

Office of the Federal Register is in the 

process of initiating a pilot program 

using electronic signatures, but for the 

time being we are required to transmit 

paper documents with original 

signatures. In addition, the 

Congressional Review Act provisions of 

the Small Business Regulatory 

Enforcement Fairness Act (5 U.S.C. 801 

et seq.) require us to file a copy of each 

final rule with both houses of Congress 

and with the Comptroller General. The 

rule cannot take effect until this 

requirement is met, and the filing 

requirement adds to the time it takes to 

publish a document. 

Section 732.17(h)(2)(v) 

Paragraph (h)(2)(v) currently requires 

that we publish a schedule for review 

and action on a State program 

amendment. Experience has shown that 

schedules usually change because of 

extensions of the comment period and 

delays in obtaining comments from 

other government agencies. Because 

these schedules are variable and 

unreliable, we are removing the 

requirement. No comments were 

received on this revision. 

Section 732.17(h)(8) 

Paragraph (h)(8) currently allows the 

State regulatory authority 30 days to 

submit a revised amendment for 

consideration if its original submission 

is not approved. Experience has shown 

that 30 days is insufficient time for the 

State to accomplish the submission. 

Because of this, we are increasing the 

time frame from 30 days to either 60 

days or, if more time may be needed by 

the State, by a date specified by the 

Director after considering the 

circumstances of the situation and the 

established administrative or legislative 

procedures in the State in question. This 

will provide the State with a more 

realistic time frame within which to act. 

In the proposed rule, we included the 

following sentence in paragraph (h)(8): 

‘‘If no submission is made, then the 

Director must follow the procedures 

specified in paragraph (f)(2) of this 

section.’’ This language was added for 

clarity in order to tie the provisions of 

§ 732.17(h)(8) to § 732.17(f)(2). However, 

as discussed in the analysis of 

§ 732.17(f)(2), our decision not to 

approve a provision of a proposed State 

program amendment does not 

necessarily mean that the approved 

State program is less stringent than the 

Act or less effective than the Federal 

regulations. This is most likely to be 

true with respect to proposed 

amendments that the State submits on 

its own initiative. In those situations 

where we decide not to approve a 

proposed amendment and the lack of 

approval does not result in a situation 

in which the approved State program no 

longer meets Federal requirements, 

there is no reason to require that the 

State resubmit a revised amendment. 

Consequently, we are not including the 

proposed sentence in the final rule. We 

have also slightly revised the first 

sentence of paragraph (f)(2) to conform 

to the elimination of the second 

sentence; i.e, to clarify that submission 

of a revised amendment is not always 

necessary following an OSM decision to 

not approve a proposed State program 

amendment. 

Two commenters requested that the 

time frame in § 732.17(h)(8) be extended 

from 60 to 90 days to allow even more 

time for submitting a revised 

amendment. We did not accept the 

suggestion because the rule provides 

sufficient flexibility to address 

situations in which 60 days is 

inadequate. 

One commenter objected to certain 

language added to § 732.17(h)(8) in the 

proposed rule. The language objected to 

reads as follows: ‘‘or a time frame 

consistent with the established 

administrative or legislative procedure 

in the State, whichever is later.’’ The 

commenter stated that, as drafted, the 

language makes it impossible to tell 

61204 Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Rules and Regulations 

when a State’s submission of a revised 

program amendment is due. The 

commenter suggested that we remove 

the language ‘‘or a time frame consistent 

with the established administrative or 

legislative procedure in the State, 

whichever is later.’’ As an alternative to 

that language, the commenter proposed 

that § 732.17(h)(8) authorize the Director 

to specify, at the time he issues his 

disapproval of a State program 

amendment, an alternative date to the 

60-day deadline. This alternative date 

would be based on the circumstances 

and the Director’s familiarity with the 

practices of the State in question and 

the deadline would be clearly stated in 

the notice of disapproval either as a date 

certain or as a specific number of days 

from the publication of the notice of 

disapproval. 

We have accepted the commenter’s 

second suggestion. We had proposed 

revising § 732.17(h)(8) in order to take 

into consideration an individual State’s 

established administrative or legislative 

procedures and to provide the State 

with a period of time that considers 

those procedures. It was not our 

intention to leave the deadline for 

submitting the revised amendment 

completely indeterminate. The 

commenter’s suggestion is consistent 

with our intent and we have, therefore, 

revised § 732.17(h)(8) to adopt the 

suggestion that the revised rule require 

that the Director specify a date by which 

the State must submit a revised 

amendment. 

Section 732.17(h)(9) 

Paragraph (h)(9) is being shortened 

and simplified by cross referencing the 

processing provisions in paragraph (h) 

rather than reiterating the procedures 

specified in paragraph (h)(9). No 

comments were received on this 

revision. 

Section 732.17(h)(12) 

Paragraph (h)(12) currently requires 

that, within 10 days after approving or 

not approving a State program 

amendment, the decision must be 

published in the Federal Register. We 

propose increasing the time period from 

10 days to 30 days for the same reasons 

as discussed for the revisions of 

paragraph (h)(1) above. See our previous 

response to comments submitted on this 

same issue in our revisions to 

§ 732.17(h)(1). 

Section 732.17(h)(13) 

We revised paragraph (h)(13) by 

deleting the cross reference to the 

schedule in paragraph (h)(2)(v) because, 

as previously discussed, we deleted that 

paragraph. We also revised the time 

frame for our final decision on a State 

program amendment by increasing the 

time allowed from six months to seven 

months to allow for the increase in time 

from 10 to 30 days to publish 

documents in the Federal Register. 

One commenter stated that, for Stateinitiated program amendments, the 

State would like to see a time frame for 

review and decision by OSM that is less 

than the seven months allowed for an 

amendment required by OSM. 

We decline to accept the commenter’s 

suggestion. We increased the time 

period for processing from six months to 

seven months to accommodate the 

additional time needed to publish 

documents. The time needed to publish 

a document remains the same whether 

the amendment is initiated by OSM or 

the State. 

With regard to the processing times 

specified in the regulations, the general 

rule is that a statutory or regulatory time 

period is not mandatory unless it both 

expressly requires an agency to act 

within a particular time period and also 

specifies a consequence for failure to 

comply. This is true even if the term 

‘‘shall’’ is used. Where no such 

consequence is specified, the time 

period is regarded as directory only, 

intended to guide the agency procedures 

but not to set inflexible requirements. 

See, Holland v. Pardee Coal Co., 269 

F.3d 424, 432 (4th Cir. 2001); In re 

Siggers, 132 F.3d 333, 336 (6th Cir. 

1997). Each State program amendment 

is unique and deals with legal and 

technical issues of various complexity. 

Because of this, each amendment 

requires a different period of time to 

process. The six month time period was 

chosen in 1979 because that was the 

time allowed in section 503(b)(4) of 

SMCRA for the Secretary to approve or 

disapprove a State program. We thought 

a similar time period would be 

appropriate for all State program 

amendments, but that has not been the 

case. While the time frame for 

processing a State program amendment 

is directory in nature, we will endeavor 

to process all amendments in the 

shortest amount of time possible. 

One commenter stated that there 

should be a conflict resolution process 

to resolve an impasse when no decision 

has been made on a submitted program 

amendment after seven months. 

We did not accept the suggestion. If 

OSM has not made a decision on the 

amendment within six months (and we 

acknowledge that that happens), it is 

because there are significant issues that 

have to be resolved. During the initial 

months following submission, there is 

considerable discussion between the 

OSM Regional Office, the OSM Field 

Office with jurisdiction over the State, 

the Interior Department legal staff, and 

the State itself to resolve issues and 

reach decisions. This discussion is in 

the nature of a conflict resolution 

process. If the issues are complicated 

and/or numerous, the back and forth 

between OSM and the State can well 

exceed six months—especially if an 

issue letter has been sent to the State. If 

a decision cannot be reached at the staff 

level, then the Regional Director, acting 

under authority delegated by the 

Director, makes a decision. 

Unfortunately, complicated issues 

cannot always be resolved in six months 

(the current time frame). We note that 

the time for processing a State program 

amendment varies from State to State 

and is often influenced by the degree to 

which the State’s submission varies 

from the Federal rule. Those States that 

adopt the Federal rule unchanged have 

shorter processing times than those 

States that submit variations of the 

Federal rule for approval. 

One commenter stated a preference 

for the term ‘‘disapprove,’’ currently 

found in paragraph (h)(8), rather than 

our revision which uses the term ‘‘not 

approve.’’ The commenter stated that no 

explanation for this change was 

provided in the preamble to the 

proposed rule. 

We revised the language in paragraph 

(h)(8) and (h)(9) in order to conform it 

with language contained in 

§ 732.17(f)(2). 

One commenter requested that we 

add a procedure that allows for 

submittal of clarifications of program 

amendments without extending the 

processing time specified in (h)(13). 

We did not accept the commenter’s 

suggestion. If the response submitted by 

the State is nothing more than a 

clarification, then the processing time 

would not be extended. If the response 

submitted by the State results in a 

significant change in the interpretation 

of the amendment, it could result in an 

extension of the processing time if we 

are required to reopen the comment 

period. 

One commenter stated that he would 

like to see a procedure that allows for 

program amendments that have no 

Federal counterpart or are outside the 

scope of SMCRA to take effect 

immediately upon publication of the 

initial Federal Register notice. Also, the 

commenter stated he would like to see 

a procedure that allows for program 

amendments that adopt Federal rules 

verbatim to take effect immediately 

upon publication of the initial Federal 

Register document. 

We did not accept the suggestion. A 

similar concept was considered by OSM 

Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Rules and Regulations 61205 

in a 1981 proposed rule and rejected. 

The rule would have provided for 

‘‘automatic approval’’ of an amendment 

unless we notified the State within 60 

days of the receipt of the amendment 

that the amendment should be subject to 

the usual notice and comment 

procedures for processing State program 

amendments. In the final rule (47 FR 

26356, 26361; June 17, 1982), we stated 

that ‘‘OSM has carefully reviewed all of 

the comments received on this proposed 

rule and has determined that the public 

participation requirements of the Act 

and rulemaking requirements of the 

APA [Administrative Procedure Act] 

preclude approval of amendments 

without some procedure for public 

notice and comment.’’ We believe that 

the requirement for public participation 

is applicable to the types of 

amendments suggested by the 

commenter. 

III. Procedural Matters and Required 

Determinations for This Rule 

Executive Order 12866—Regulatory 

Planning and Review 

This document is considered a 

significant rule under Executive Order 

12866 and is subject to review by the 

Office of Management and Budget. 

Based on the discussion in the 

preamble, and the following 

information, it has been determined 

that: 

a. The rule will not have an annual 

effect of $100 million or more on the 

economy, and will not adversely affect 

in a material way the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities. The rule is procedural in 

nature and will not impose any new 

compliance costs on the coal industry or 

State governments. Its anticipated 

benefits are difficult to monetize 

because they result primarily from the 

potential administrative costs savings to 

the Federal government that ensue 

when the Federal government is not 

required to immediately begin Part 733 

proceedings for minor State program 

deficiencies. While the rule’s benefits 

are difficult to monetize, OSM does not 

expect the rule to result in more than 

$100 million per year in cost savings. If 

we assume, for the purpose of 

illustration, that every State that has 

primacy had a minor deficiency which 

OSM would determine does not warrant 

further action under this rule, the rule 

could potentially save the costs of a 

hearing or $2,650 per State, or $63,600 

total (24 primacy States × $2,650 

hearing cost per State). However, even 

in those situations where a Part 733 

action is initiated, the matter may be 

resolved prior to going to the hearing 

stage. Nevertheless, even if the potential 

savings would not be fully realized, 

OSM believes this rule should be 

adopted because the flexibility it 

provides will allow OSM to determine 

which deficiencies are substantive and 

warrant the expense involved in holding 

formal proceedings including hearings 

and which can be better addressed 

through informal means. 

b. This rule will not create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency. 

c. This rule does not alter the 

budgetary effects of entitlements, grants, 

user fees, or loan programs or the rights 

or obligations of their recipients. 

d. This rule may raise novel legal or 

policy issues which is why it is 

considered significant under Executive 

Order 12866. 

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.). This rule will not 

affect small entities. The revisions to 

Part 732 will affect the manner in which 

program amendments submitted by the 

States (currently 24) with approved 

State programs are processed. As 

previously stated, the revisions are not 

expected to have an adverse economic 

impact. Further, the rule produces no 

adverse effects on competition, 

employment, investment, productivity, 

innovation, or the ability of United 

States enterprises to compete with 

foreign-based enterprises in domestic or 

export markets. 

Small Business Regulatory Enforcement 

Fairness Act 

For the reasons previously stated, this 

rule is not a major rule under 5 U.S.C. 

804(2), the Small Business Regulatory 

Enforcement Fairness Act. This rule: 

a. Does not have an annual effect on 

the economy of $100 million or more. 

b. Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. 

c. Does not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises 

for the reasons stated above. 

Unfunded Mandates 

This rule does not impose an 

unfunded mandate on State, local, or 

Tribal governments or the private sector 

of more than $100 million per year. The 

rule does not have a significant or 

unique effect on State, Tribal, or local 

governments or the private sector. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1501 et seq.) is not 

required. 

Executive Order 12630—Takings 

In accordance with Executive Order 

12630, the rule does not have significant 

takings implications. The revisions are 

procedural in nature and do not affect 

private property. 

Executive Order 12988—Civil Justice 

Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that this rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. 

Executive Order 13132—Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism implications to warrant the 

preparation of a Federalism Assessment 

for the reasons discussed above. 

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 

pertaining to actions under Part 733 

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. 

Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not considered a 

significant energy action under 

Executive Order 13211. The revisions to 

the provisions governing the processing 

of State program amendments and the 

time frames for their publication will 

not have a significant effect on the 

supply, distribution, or use of energy. 

Paperwork Reduction Act 

This rule does not alter the 

information collection requirements 

currently approved for Part 732. 

61206 Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / Rules and Regulations 

Therefore, approval by the Office of 

Management and Budget is not required. 

National Environmental Policy Act 

OSM has determined that this 

rulemaking action is categorically 

excluded from the requirement to 

prepare an environmental document 

under the National Environmental 

Policy Act of 1969, as amended, 42 

U.S.C. 4332 et seq. In addition, we have 

determined that none of the 

‘‘extraordinary circumstances’’

exceptions to the categorical exclusion 

apply. This determination was made in 

accordance with the Departmental 

Manual (516 DM 2, Appendixes 1.9 and 

2). 

How Will This Rule Affect State 

Programs? 

Following publication of a final rule, 

we will evaluate the State and Indian 

programs approved under section 503 of 

SMCRA to determine any changes in 

those programs that may be necessary. 

When we determine that a particular 

State program provision should be 

amended, the State will be notified in 

accordance with the provisions of 30 

CFR 732.17. We have made a 

preliminary determination that no State 

program revisions will be required. 

List of Subjects in 30 CFR Part 732 

Intergovernmental relations, 

Reporting and recordkeeping 

requirements, Surface mining, 

Underground mining. 

Dated: August 11, 2005. 

Rebecca W. Watson, 

Assistant Secretary, Land and Minerals 

Management. 

■ Accordingly, we are amending 30 CFR 

part 732 as set forth below. 

PART 732—PROCEDURES AND 

CRITERIA FOR APPROVAL OR 

DISAPPROVAL OF STATE PROGRAM 

SUBMISSIONS 

■ 1. The authority citation for part 732 

continues to read as follows: 

Authority: 30 U.S.C. 1201 et seq. and 16 

U.S.C. 470 et seq. 

■ 2. Section 732.17 is amended by: 

■ a. Revising paragraphs (f)(2), (h)(1), 

(h)(8), (h)(9), (h)(12), and (h)(13); 

■ b. Amending paragraph (h)(2)(iv) by 

removing ‘‘; and’’ at the end of the 

paragraph and adding a period in its 

place; and 

■ c. Removing paragraph (h)(2)(v). 

The amendments read as follows: 

§ 732.17 State program amendments. 

* * * * * 

(f) * * * 

(2) If the State regulatory authority 

does not submit the information 

required by paragraph (f)(1), or does not 

subsequently comply with the 

submitted timetable, or if the resulting 

proposed amendment is not approved 

under this section, then the Director 

must begin proceedings under 30 CFR 

part 733 if the Director has reason to 

believe that such action is warranted 

because the State is not effectively 

implementing, administering, 

maintaining or enforcing all or part of 

its approved State program. 

* * * * * 

(h) * * * 

(1) Within 30 days after receipt of a 

State program amendment from a State 

regulatory authority, the Director will 

publish a notice of receipt of the 

amendment in the Federal Register. 

* * * * * 

(8) If the Director does not approve 

the amendment request, the State 

regulatory authority will have 60 days 

after publication of the Director’s 

decision to submit a revised amendment 

for consideration by the Director. If 

more time may be needed by the State 

to submit a revised amendment, the 

Director may grant more time by 

specifying in the decision, a date by 

which the State regulatory authority 

must submit a revised amendment. The 

date specified in the Director’s decision 

should be based on the circumstances of 

the situation and the established 

administrative or legislative procedures 

of the State in question. 

(9) The Director will approve or not 

approve revised amendment 

submissions in accordance with the 

provisions under paragraph (h) of this 

section. 

* * * * * 

(12) All decisions approving or not 

approving program amendments must 

be published in the Federal Register 

and will be effective upon publication 

unless the notice specifies a different 

effective date. The decision approving 

or not approving program amendments 

will be published in the Federal 

Register within 30 days after the date of 

the Director’s decision. 

(13) Final action on all amendment 

requests must be completed within 

seven months after receipt of the 

proposed amendments from the State. 

[FR Doc. 05–21025 Filed 10–19–05; 8:45 am] 

BILLING CODE 4310–05–P