Technical Amendments 2010

Summary:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are making technical revisions to our regulations to correct various errors in citations, cross-references, and other inadvertent errors in publication.

Table of Contents

Dates:

Effective Date: September 29, 2010.

For further information contact:

Andy DeVito, Office of Surface Mining Reclamation and Enforcement, South Interior Building MS-252, 1951 Constitution Avenue, NW., Washington, DC 20240; Telephone (202) 208-2701; e-mail:adevito@osmre.gov.

Supplementary information:

I. Discussion of Final Rule

We are making non-substantive revisions to our regulations to correct errors in citations, cross-references, and other inadvertent errors in drafting. OSM's regulations are located in title 30 of the Code of Federal Regulations (CFR). The regulations may be viewed on the Internet at:http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?sid=fbd21e91edb535fd2b3baf6d4d181e1f&c=ecfr&tpl=/ecfrbrowse/Title30/30cfrv3_02.tpl. Below is a section-by-section discussion of the revisions that we are making.

Section 740.11—Applicability

On January 31, 1997, at 62 FR 4836, we proposed a rule that would revise our Federal lands program regulations at 30 CFR 740.11. We intended to revise the introductory text to § 740.11(a). The amendatory language (instructions) for making those revisions and changing the CFR were published at 62 FR 4859 and correctly read as follows: In § 740.11, paragraph (a) introductory text is revised and paragraph (g) is added * * *. On December 17, 1999, at 64 FR 70766, we published the final rule revising the introductory text to § 740.11(a). However, there was an error in the amendatory language published at 64 FR 70831. The words “introductory text,” which had been used in the proposed rule, were inadvertently dropped with the result that paragraphs (a)(1) and (a)(2) of § 740.11 were unintentionally deleted. [1] To correct that error, we are reinstating paragraphs (a)(1) and (a)(2). Paragraph (a) introductory text, which is currently in the CFR, and reinstated paragraphs (a)(1) and (a)(2) will reads as follows:

(a) Except as provided in paragraph (g) of this section, both this subchapter and the pertinent State or Federal regulatory program in subchapter T of this chapter apply to:

(1) Coal exploration operations on Federal lands not subject to 43 CFR parts 3400, and

(2) Surface coal mining and reclamation operations taking place on any Federal lands as defined in 30 CFR 700.5, and lands (except Indian lands) over leased or unleased Federal minerals.

Section 761.16—Submission and processing of requests for valid existing rights determinations

On December 19, 2000, at 65 FR 79582, 79663, we revised our regulations and redesignated § 773.13 as § 773.6. In paragraph (g) of § 761.16, we cross-reference § 773.13(d). Because of the redesignation published on December 19, 2000, the cross reference to § 773.13(d) should have been changed to § 773.6(d). To correct that error, we are changing the cross-reference in § 761.16(g) from § 773.13(d) to § 773.6(d).

Section 773.6—Public participation in permit processing

On December 17, 1999, at 64 FR 70766, we revised our regulations in 30 CFR Part 761. As a result of the revisions, certain cross-references changed. At the time of the 1999 revision, § 773.13(c)(4), later redesignated as § 773.6(c)(4), cross-referenced § 761.12(d). In the 1999 revision, the provisions in § 761.12(d) were revised and incorporated into § 761.14 at paragraph (c). Consequently, the cross-reference in § 773.13(c)(4) should have been changed from § 761.12(d) to § 761.14(c). To correct this error, we are changing the cross-reference in § 773.6(c)(4) from § 761.12(d) to § 761.14(c). In addition, two typographical errors are being corrected in § 773.6(c)(4). The word “conference” is being removed and the word “conferences” is being added in its place, and the word “accordances” is being removed and the word “accordance” is being added in its place.

Section 773.9—Review of applicant, operator, and ownership and control information

The section heading for § 773.9 currently reads as follows: Review of applicant, operator, and ownership and control information. On December 3, 2007, at 72 FR 68000, 68029, we published revisions to § 773.9. We intended to revise the section heading and paragraph (a) of § 773.9. The revised section heading was correctly printed in the Federal Register on December 3, 2007, and read as follows: Review of applicant and operator information. However, in the amendatory instructions, we failed to instruct the Office of the Federal Register to revise the section heading. Because of that omission, the section heading was never changed in the CFR. To correct that error, we are revising the section heading to read as follows: Review of applicant and operator information.

Section 773.22—Notice requirements for improvidently issued permits

On December 19, 2000, at 65 FR 79582, 79665, we revised § 773.22(a) and in two locations in that paragraph, we intended to use the phrase “proposed suspension or rescission.” However, a typographical error occurred the second time the phrase was used and the phrase was worded as “proposed suspension of rescission.” We are correcting the error by removing the word “of” and adding the word “or” so that the phrase will now read as follows: proposed suspension or rescission.

Section 795.4—Information collection

In § 795.4, we are revising the last sentence to reflect a change in the mailing address where comments may be sent concerning the information collection requirements found in the regulations in part 795.

Section 816.46—Hydrologic balance: Siltation structures

On December 12, 2008, at 73 FR 75814, we published a final rule that would have removed paragraph (b)(2) of §§ 816.46 and 817.46. Those paragraphs required that all surface drainage from the disturbed area be passed through a siltation structure before leaving the permit area. In essence, that paragraph prescribed siltation structures (sedimentation ponds and other treatment facilities) as the best technology currently available for sediment control. Previously, however, paragraph (b)(2) was struck down upon judicial review because the court found that the preamble to the rulemaking in which it was adopted did not articulate a sufficient basis for the rule under theAdministrative Procedure Act. The court stated that the preamble did not adequately discuss the benefits and drawbacks of siltation structures and alternative sediment control methods and did not enable the court “to discern the path taken by [the Secretary of the Interior] in responding to commenters' concerns” that siltation structures in the West are not the best technology currently available. See In re Permanent Surface Mining Regulation Litigation,620 F. Supp. 1519, 1566-1568 (D.DC 1985).

On November 20, 1986, at 51 FR 41961, we suspended the rules struck down by the court. To avoid any confusion that might result from the continuing publication of those rules in the CFR, we proposed to remove paragraph (b)(2) of §§ 816.46 and 817.46 and redesignate the remaining paragraphs of those sections accordingly. 72 FR 48890, 48907 (August 24, 2007).

We received no comments opposing the proposal. Therefore, on December 12, 2008, at 73 FR 75883 and 75884, we published amendatory language with the intent to remove paragraph (b)(2) of §§ 816.46 and 817.46. In the amendatory language, however, we failed to use the words “lift the suspension” prior to directing the removal of paragraph (b)(2). Because a suspension must be lifted before any action may be taken on a suspended section or paragraph, the amendatory language that we used was insufficient to remove paragraph (b)(2) and redesignate paragraphs (b)(3) through (b)(6) as (b)(2) through (b)(5), respectively. In order to correct that error, we are publishing amendatory language that will lift the suspension and remove paragraph (b)(2) of §§ 816.46 and 817.46 and redesignate paragraphs (b)(3) through (b)(6) as (b)(2) through (b)(5), respectively.

Section 817.15—Casing and sealing of underground openings: Permanent

On September 18, 1978, at 43 FR 41662, 41900, we published a proposed rule which cross-referenced the regulations of the Mine Safety and Health Administration at 30 CFR 75.1711. When the final regulations were issued on March 13, 1979, at 44 FR 14902, 15423, a typographical error occurred and the citation was changed to 30 CFR 75.1771, which does not exist. In order to correct the error, we are revising 30 CFR 817.15 by removing “30 CFR 75.1771” and adding in its place “30 CFR 75.1711,” which governs the sealing of mines.

Section 817.46—Hydrologic balance: Siltation structures

See the discussion above under the heading “Section 816.46—Hydrologic balance: Siltation structures.”

Section 840.10—Information collection

In § 840.10, we are revising the last sentence to reflect a change in the mailing address where comments may be sent concerning the information collection requirements found in the regulations in part 840.

Section 840.13—Enforcement authority

Section 840.13(b) contains a cross-reference to § 843.23, which does not exist. On September 6, 1991, OSM had proposed to add a § 843.23, which would have provided for sanctions for knowing omissions or inaccuracies in ownership or control and violation information in permit applications. 56 FR 45780, 45804. However, in the final rule published on October 28, 1994, OSM chose not to adopt § 843.23. 59 FR 54329. The cross-reference, however, was not deleted from § 840.13(b), where it had been added in anticipation of the adoption of § 843.23. 59 FR 54312. Because § 843.23 has never been adopted, we are revising § 840.13(b) by removing the cross-reference to § 843.23.

Section 842.11—Federal inspections and monitoring

On July 14, 1988, at 53 FR 26728, we revised section § 842.11. Two typographical errors occurred. First, in paragraph (b)(1)(ii)(B)(1), we intended to cross-reference paragraph (b)(1)(iii) but mistakenly typed (b)(i)(iii), which does not exist. It is clear from the preamble discussion at 53 FR 26732 that the correct cross-reference should be (b)(1)(iii). Therefore, we are deleting the reference to (b)(i)(iii) and adding in its place (b)(1)(iii).

Second, a typographical error occurred in paragraph (b)(1)(ii)(B)(4)(iv) where we use the words “section 525(c) or 525(c).” As is clear from the preamble discussion at 53 FR 26735, we had intended to specify “section 525(c) or 526(c).” Therefore, we are removing the words “section 525(c) or 525(c)” and adding in their place the words “section 525(c) or 526(c)”. Section 525(c) of SMCRA, 30 U.S.C. 1275(c), deals with the granting of temporary relief by the Secretary of the Interior, and section 526(c) of SMCRA, 30 U.S.C. 1276(c), deals with the granting of temporary relief by a court.

Section 870.20—How to calculate excess moisture in LOW-rank coals

In § 870.20, we are revising the sixth sentence of the introductory text to reflect a change in the OSM address where a copy of the ASTM standards, incorporated by reference, is available for inspection.

Section 884.13—Content of proposed State reclamation plan

Section 884.13 specifies what is required in a proposed State reclamation plan. In paragraph (b), we intended to require the submission of a legal opinion from the State Attorney General or the chief legal officer of the State agency stating that the designated agency has the authority under State law to conduct the program in accordance with the requirements of Title IV of the Act. When the final rule was published on June 30, 1982, at 47 FR 28574, 28600, a typographical error occurred and the word “on” was used instead of the word “or” with the result that the paragraph reads “opinion from the State Attorney General on the chief legal officer of the State agency.” To correct that error, we are removing the word “on” and adding in its place the word “or”. The authority for requiring the submission of a legal opinion is found in section 405(e) of SMCRA, 30 U.S.C. 1235(e).

II. Procedural Matters

Administrative Procedure Act

This final rule has been issued without prior public notice or opportunity for public comment. The Administrative Procedure Act (APA) (5 U.S.C. 553) provides an exception to the notice and comment procedures when an agency finds that there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary, or contrary to the public interest. OSM has determined that, under 5 U.S.C. 553(b)(3)(B), good cause exists for dispensing with the notice of proposed rulemaking and public comment procedures for this rule. Specifically, OSM has determined that notice and comment is unnecessary for this rule because the rule is comprised of technical, non-substantive amendments. As discussed above, this rule corrects obvious errors in the CFR, and OSM's true intentions are readily ascertained in the relevant rulemaking documents. Finally, this rule does not impose any new regulatory requirements. For the same reasons, we find that good cause exists under 5 U.S.C. 553(d)(3) of the APA to have the regulation become effective on a datethat is less than 30 days after the date of publication in the Federal Register.

Executive Order 12866

This rule is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866. As previously stated, this rule corrects errors in the CFR and does not impose any new regulatory requirements. For these reasons, we find that:

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency for the reasons stated above.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

(4) This rule does not raise novel legal or policy issues for the reasons stated above.

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. 601et seq.). As previously stated, the rule corrects errors in the CFR and does not impose any new regulatory requirements.

Small Business Regulatory Enforcement Fairness Act

For the reasons previously stated, this rule is not considered a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(1) Will not have an annual effect on the economy of $100 million.

(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, state, or local government agencies, or geographic regions because the rule does not impose new requirements on the coal mining industry or consumers.

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

Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. As previously stated, the rule corrects errors in the CFR and does not impose any new OSM regulatory requirements. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531et seq.) is not required.

Federal Paperwork Reduction Act

This rule does not contain collections of information that require approval by the Office of Management and Budget under 44 U.S.C. 3501et seq.

National Environmental Policy Act

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

Executive Order 12988 on Civil Justice Reform

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

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

Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is not considered significant under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the proposed revisions would not have substantial direct effects on the relationship between the Federal Government and Indian Tribes or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. As previously stated, this rule corrects errors in the CFR and does not impose any new regulatory requirements.

Executive Order 12630—Takings

Under the criteria in Executive Order 12630, this rule does not have significant takings implications; therefore, a takings implication assessment is not required. This determination is based on the fact that the rule corrects errors in the CFR and does not impose any new regulatory requirements.

Executive Order 13132—Federalism

This rule does not have Federalism implications. For the reasons previously stated, it will not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

Data Quality Act

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

Effect in Federal Program States, Primacy States, and on Indian Lands

The rule will apply through cross-referencing to the following Federal program states: California, Georgia, Idaho, Massachusetts, Michigan, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee, and Washington. The Federal programs for these States appear at 30 CFR Parts 905, 910, 912, 921, 922, 933, 937, 939, 941, 942, and 947, respectively. The rule also applies through cross-referencing to Indian lands under the Federal program for Indian lands as provided in 30 CFR Part 750. Because the rule is comprised oftechnical, non-substantive amendments and does not impose any new regulatory requirements, States with approved regulatory programs will not be required to amend their programs.

List of subjects

Public lands-mineral resources, Reporting and recordkeeping requirements, Surety bonds, Surface mining, Underground mining.

Administrative practice and procedure, Reporting and recordingkeeping requirements, Surface mining, Underground mining.

Grant programs-natural resources, Reporting and recordkeeping requirements, Small businesses, Surface Mining, Technical Assistance, Underground mining.

Environmental protection, Reporting and recordkeeping requirements, Surface mining.

Environmental protection, Reporting and recordkeeping requirements, Underground mining.

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

Law enforcement, Surface mining, Underground mining.

Reporting and recordkeeping requirements, Surface mining, Underground mining.

Grant programs-natural resources, Reporting and recordkeeping requirements, Surface mining, Underground mining.

Dated: September 21, 2010. Sylvia V. Baca,

Deputy Assistant Secretary, Land and Minerals Management.

For the reasons set forth in the preamble, we are amending 30 CFR Parts 740, 761, 773, 795, 816, 817, 840, 842, 870, and 884 as set forth below.

Part 740—general requirements for surface coal mining and reclamation operations on federal lands

1. The authority citation for Part 740 continues to read as follows:

Authority:

30 U.S.C. 1201et seq. and 30 U.S.C. 181et seq.

2. In § 740.11, add paragraphs (a)(1) and (a)(2) to read as follows: § 740.11

(a) * * *

(1) Coal exploration operations on Federal lands not subject to 43 CFR part 3400, and

(2) Surface coal mining and reclamation operations taking place on any Federal lands as defined in § 700.5 of this chapter, and lands (except Indian lands) over leased or unleased Federal minerals.

* * * * *

Part 761—areas designated by act of congress

3. The authority citation for Part 761 continues to read as follows:

Authority:

30 U.S.C. 1201et seq.

§ 761.16 4. In paragraph (g) of § 761.16, remove the citation “§ 773.13(d)” and add in its place the citation “§ 773.6(d)”.

Part 773—requirements for permits and permit processing

5. The authority citation for part 773 continues to read as follows:

Authority:

30 U.S.C. 1201et seq.,16 U.S.C. 470et seq.,16 U.S.C. 661et seq.,16 U.S.C. 703et seq.,16 U.S.C. 668a et seq.,16 U.S.C. 469et seq., and 16 U.S.C. 1531et seq.

6. In § 773.6, revise paragraph (c)(4) to read as follows: § 773.6 * * * * *

(c) * * *

(4) Informal conferences held in accordance with this section may be used by the regulatory authority as the public hearing required under § 761.14(c) of this chapter on proposed relocation or closing of public roads.

* * * * *
7. In § 773.9, revise the section heading to read as follows: § 773.9 * * * * * 8. In § 773.22, revise paragraph (a) introductory text to read as follows: § 773.22

(a) We, the regulatory authority, must serve you, the permittee, with a written notice of proposed suspension or rescission, together with a statement of the reasons for the proposed suspension or rescission, if—

* * * * *

Part 795—permanent regulatory program—small operator assistance program

9. The authority citation for Part 795 continues to read as follows:

Authority:

30 U.S.C. 1201et seq.

10. In § 795.4, revise the last sentence to read as follows: § 795.4

* * * Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Office of Surface Mining Reclamation and Enforcement, Information Collection Clearance Officer (MS-202), 1951 Constitution Avenue, NW., Washington, DC 20240.

Part 816—permanent program performance standards—surface mining activities

11. The authority citation for Part 816 continues to read as follows:

Authority:

30 U.S.C. 1201et seq.

§ 816.46 12. In § 816.46, lift the suspension of paragraph (b)(2), remove paragraph (b)(2), and redesignate paragraphs (b)(3) through (b)(6) as (b)(2) through (b)(5), respectively.

Part 817—permanent program performance standards—underground mining activities

13. The authority citation for Part 817 continues to read as follows:

Authority:

30 U.S.C. 1201et seq.

§ 817.15 14. In § 817.15, remove the citation “30 CFR 75.1771” and add in its place the citation “30 CFR 75.1711”. § 817.46 15. In § 817.46, lift the suspension of paragraph (b)(2), remove paragraph (b)(2), and redesignate paragraphs (b)(3) through (b)(6) as (b)(2) through (b)(5), respectively.

Part 840—state regulatory authority; inspection and enforcement

16. The authority citation for Part 840 continues to read as follows:

Authority:

30 U.S.C. 1201et seq., unless otherwise noted.

17. In § 840.10, revise the last sentence of paragraph (b) to read as follows: § 840.10 * * * * *

(b) * * * Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Information Collection Clearance Officer (MS-202), 1951 Constitution Ave, NW., Washington, DC 20240.

18. In § 840.13, revise paragraph (b) to read as follows: § 840.13 * * * * *

(b) The enforcement provisions of each State program shall contain sanctions which are no less stringent than those set forth in section 521 of the Act and shall be consistent with §§ 843.11, 843.12, 843.13, and subchapters G and J of this chapter.

* * * * *

Part 842—federal inspections and monitoring

19. The authority citation for Part 842 continues to read as follows:

Authority:

30 U.S.C. 1201et seq.

§ 842.11 20. Amend § 842.11 as follows: a. Amend paragraph (b)(1)(ii)(B)(1) by removing the reference “(b)(i)(iii)” and adding in its place “(b)(1)(iii)”, and b. Amend paragraph (b)(1)(ii)(B)(4) by indenting each subparagraph (i) through (iv) and capitalizing the first words of each, and in paragraph (b)(1)(ii)(B)(4)(iv) by removing the words “section 525(c) or 525(c)” and adding in their place the words “section 525(c) or 526(c)”.

Part 870—abandoned mine reclamation fund—fee collection and coal production reporting

21. The authority citation for Part 870 continues to read as follows:

Authority:

28 U.S.C. 1746, 30 U.S.C. 1201et seq. and Pub. L. 105-277.

22. In § 870.20, revise the sixth sentence of the introductory text to read as follows: § 870.20

* * * A copy of the ASTM standards is available for inspection at the Office of Surface Mining Reclamation and Enforcement, Administrative Record, Room 101, 1951 Constitution Avenue, NW., Washington, DC, or at the National Archives and Records Administration (NARA). * * *

* * * * *

Part 884—state reclamation plans

23. The authority citation for Part 884 continues to read as follows:

Authority:

30 U.S.C. 1201et seq.

24. In § 884.13, revise paragraph (b) to read as follows: § 884.13 * * * * *

(b) A legal opinion from the State Attorney General or the chief legal officer of the State agency that the designated agency has the authority under State law to conduct the program in accordance with the requirements of Title IV of the Act.

* * * * *

Footnotes

1. The erroneous instructions read as follows: In § 740.11, paragraph (a) is revised and paragraph (g) is added to read as follows.

References

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