[Federal Register Volume 62, Number 61 (Monday, March 31, 1997)]
[Rules and Regulations]
[Pages 15112-15115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8103]
[[Page 15112]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 756
[HO-004-FOR]
Hopi Tribe Abandoned Mine Land Reclamation Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving a proposed amendment to the Hopi Tribe abandoned mine land
reclamation (AMLR) plan (hereinafter, the ``Hopi plan'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The Hopi
Tribe proposed to revise, add, or delete plan provisions pertaining to
the preface to amended reclamation plan; purpose of the Hopi plan;
eligible lands and water subsequent to certification; land acquisition,
management, and disposal; rights of entry; Hopi Department of Natural
Resources policy on public participation; organization of the Hopi
Tribe; a description of aesthetic, cultural and recreational conditions
on the Hopi Reservation; and a description of the flora and fauna found
on the Hopi Reservation. The amendment revised the Hopi plan to meet
the requirements of the corresponding Federal Regulations and to be
consistent with SMCRA; to incorporate the additional flexibility
afforded by the revised Federal regulations and SMCRA, as amended; to
clarify ambiguities; and to improve operational efficiency.
EFFECTIVE DATE: March 31, 1997.
FOR FURTHER INFORMATION CONTACT:
Guy Padgett, Telephone: (505) 248-5070, Internet address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Hopi Plan
On June 28, 1988, the Secretary of the Interior approved the Hopi
plan. General background information on the Hopi plan, including the
Secretary's findings and the disposition of comments, can be found in
the June 28, 1988, Federal Register (53 FR 24262). Subsequent actions
concerning the Hopi Tribe's plan and plan amendments can be found at 30
CFR 756.17 and 756.18.
II. Proposed Amendment
By letter dated September 23, 1996, the Hopi Tribe submitted a
proposed amendment to its plan (administrative record No. HO-156)
pursuant to SMCRA (30 U.S.C. 1201 et seq.). The Hopi Tribe submitted
the proposed amendment at its own initiative and in response to the
required plan amendments at 30 CFR 756.18 (a) through (h). The
provisions of the Hopi plan that the Hopi Tribe proposed to revise,
add, or delete were: Preface to amended reclamation plan; section I, A,
purpose of the Hopi plan; section II, A(1), coal reclamation after
certification, and section II, A(1)(i), limited liability (coal
reclamation); sections II, B(1)(d) and (d)(ii), noncoal reclamation
after certification and the construction of public facilities, and
sections II, B(1) (h), (i), and (j), limited liability, contractor
responsibility, and reports (noncoal reclamation); section IV, A(1),
land acquisition, and section IV, B, management of required land;
sections VI, A(1) and B(1), consent to entry and public notice; section
XII, description of aesthetic, cultural and recreational conditions of
the Hopi Reservation; and section XIV, flora and fauna of the Hopi
Reservation.
OSM announced receipt of the proposed amendment in the October 16,
1996, Federal Register (61 FR 53884), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. HO-159).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on November 15, 1996.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 884.14 and 884.15, finds that the proposed plan amendment submitted
by the Hopi Tribe on September 23, 1996, meets the requirements of the
corresponding Federal regulations and is consistent with SMCRA. Thus,
the Director approves the proposed amendment.
1. Nonsubstantive Revisions to the Hopi Plan Provisions
The Hopi Tribe proposed revisions to the following previously-
approved plan provisions that are nonstubstantive in nature and consist
of minor editorial, punctuation, grammatical, and recodification
changes (corresponding SMCRA provisions and Federal regulations are
listed in parentheses):
Preface to amend reclamation plan, (sections 411(e) and (f) of
SMCRA and 30 CFR 875.15), eligible projects;
Section II, A(1)(a), (30 CFR' 874.12)(c)), eligible coal lands and
water;
Section II, A(1)(g), (30 CFR 874.16), contractor responsibility
(coal reclamation);
Section II, B(1)(d), (30 CFR 874.15(b)), noncoal reclamation after
certification;
Deletion of sections II, E, F, and G, (30 CFR 874.15 and .16,
875.19 and .20, and 886.23(b)), limited liability, contractor
responsibility, and reports;
Section II, E, (sections 411(e) and (f) of SMCRA and 30 CFR
875.15(d) and (e) and 884.13(c)(2)), description of needs, proposed
construction and activities;
Section VII, B(8), (30 CFR 884.13(c)(7)), public participation;
Section VIII, (30 CFR 884.13(d)(1)), organization of the Hopi
Tribe; and
Section XIV, (30 CFR 884.13(f)), flora and fauna.
Because the proposed revisions to these previously-approved Hopi
plan provisions are nonsubstantive in nature, the Director finds that
they are consistent with the corresponding provisions of SMCRA and meet
the requirements of the Federal regulations. Therefore, the Director
approves the proposed revisions to these plan provisions.
2. Substantive Revisions to the Hopi Plan Provisions That Are
Substantively Identical to the Corresponding Provisions of SMCRA and
the Federal Regulations
The Hopi Tribe proposed revisions to the following plan provisions
that are substantive in nature and contain language that is
substantively identical to the requirements of the corresponding
provisions of SMCRA and the Federal regulations (listed in
parentheses):
Preface to amended reclamation plan, (title IV of SMCRA and 30 CFR
subchapter R), introductory paragraph;
Section II, A(1)(i), (30 CFR 874.15), limited liability (coal
reclamation);
Section II, B(1)(h), (30 CFR 875.19), limited liability (noncoal
reclamation);
Section II, B(1)(i), (30 CFR 875.20), contractor responsibility
(noncoal reclamation); and
Section II, B(1)(j), (30 CFR 886.23(b)), reports (noncoal
reclamation);
Because these proposed revisions to the Hopi plan provisions are
substantively identical to the corresponding provisions of SMCRA and
the Federal regulations, the Director finds that they are consistent
with the corresponding provisions of SMCRA and meet the requirements of
the Federal regulations. Therefore, the Director approves the proposed
revisions to these plan provisions.
[[Page 15113]]
3. Revisions to the Hopi Plan Provisions Submitted in Response to
Required Amendments
In response to the required plan amendments at 30 CFR 756.18(d)
through (h) (April 23, 1996, 61 FR 17833, 17836-38, finding Nos. 5, 6,
7, and 9), the Hopi Tribe proposed to revise its plan provisions at
section II, A(1), concerning coal reclamation after certification;
section II, B(1)(d)(ii), concerning noncoal reclamation after
certification; section IV, A(1), concerning land acquisition; section
IV, B(1), concerning management of acquired lands; and section XII,
concerning description of aesthetic, cultural and recreational
conditions of the Hopi Reservation.
Section II, A(1).--OSM at 30 CFR 756.18(d) (finding No. 5(b), 61 FR
17833, 17836) required the Hopi Tribe to revise section II, A(1) to
require that any coal reclamation activities subsequent to
certification of coal reclamation are subject to the provisions of
sections 401 through 410 of SMCRA.
In response to the required amendment, the Hopi Tribe proposed to
add such language to its plan at section II, A(1) to provide for coal
reclamation after certification. In addition, the Hopi Tribe corrected
a reference in this section to the effective date of the Hopi Tribe's
certification that all known abandoned coal mine problems had been
addressed. For the reasons discussed in the April 23, 1996, Federal
Register, the Director finds that the proposed revisions at section II,
A(1) of the Hopi plan meet the requirements of the Federal regulations
at 30 CFR 875.13(b) and 875.14(b)). Accordingly, the Director approves
the proposed revisions to section II, A(1) and removes the required
amendment at 30 CFR 756.18(d).
Section II, B(1)(d)(ii).--OSM at 30 CFR 756.18(e) (finding No.
6(a), 61 FR 17833, 17836) required the Hopi Tribe to revise section II,
B(1)(d)(ii) to delete the word ``property'' for priority two noncoal
reclamation.
In response to the required amendment, the Hopi Tribe revised
section II, B(1)(d)(ii) to provide for the protection of public health,
safety, and general welfare from the adverse effects of mineral mining
and processing practices. For the reasons discussed in the April 23,
1996, Federal Register, the Director finds that the proposed revision
at section II, B(1)(d)(ii) of the Hopi plan meets the requirements of
the Federal regulations at 30 CFR 875.15(b)(2). Accordingly, the
Director approves the proposed revision to section II, B(1)(d)(ii) and
removes the required amendment at 30 CFR 756.18(e).
Section IV, A(1).--OSM at 30 CFR 756.18(f) (finding No. 7(a), 61 FR
17833, 17837) required the Hopi Tribe to revise section IV, A(1) to
delete the word ``coal'' from the phrase ``coal refuse thereon'' to
ensure that lands eligible for acquisition included those on which
refuse from both coal and noncoal mining practices are located.
In response to the required amendment, the Hopi Tribe revised
section IV, A(1) to provide that noncoal lands and water may be
acquired in the same manner as coal lands and water. For the reasons
discussed in the April 23, 1996, Federal Register, the Director finds
that the proposed revision at section IV, A(1) of the Hopi plan meets
the requirements of the Federal regulations at 30 CFR 875.17 and
879.11(a). Accordingly, the Director approves the proposed revision to
section IV, A(1) and removes the required amendment at 30 CFR
756.18(f).
Section IV, B(1).--OSM at 30 CFR 756.18(g) (finding No. 7(c), 61 FR
17833, 17837) required the Hopi Tribe to revise section IV, B(1) to
reinstate the phrase ``may be used pending'' to its provisions
concerning the management of acquired lands.
In response to the required amendment, the Hopi Tribe revised
section IV, B(1) to provide that land acquired under rules of the Hopi
plan may be used pending concurrence of the Hopi AMLR program and
Tribal Council for any lawful purpose that is not inconsistent with the
reclamation activities and post reclamation uses for which it was
acquired. For the reasons discussed in the April 23, 1996, Federal
Register, the Director finds that the proposed revision at section IV,
B(1) of the Hopi plan meets the requirements of the Federal regulations
at 30 CFR 879.14. Accordingly, the Director approves the proposed
revision to section IV, B(1) and removes the required amendment at 30
CFR 756.18(g).
Section XII.--OSM at 30 CFR 756.18(h) (finding No. 9, 61 FR 17833,
17838) required the Hopi Tribe to revise its plan to include
information concerning significant aesthetic, historic or cultural, and
recreational values.
In response to the required amendment, the Hopi Tribe added section
XII to provide a description of aesthetic, cultural and recreational
conditions of the Hopi Reservation. For the reasons discussed in the
April 23, 1996, Federal Register, the Director finds that the proposed
addition at section XII of the Hopi plan meets the requirements of the
Federal regulations at 30 CFR 884.13(f)(2). Accordingly, the Director
approves the proposed revision to section IV, B(1) and removes the
required amendment at 30 CFR 756.18(h).
4. Section I, A, Purpose of Hopi Tribe AMLR Plan
The Hopi Tribe proposed to revise section I, A, of its plan in
response to required amendments at 30 CFR 756.18 (a) through (c) (April
23, 1996, 61 FR 17833, 17835, finding Nos. 4 (a), (d), and (e)). OSM
required the Hopi Tribe to revise section I, A to (1) provide separate
provisions for coal and noncoal reclamation activities, (2) ensure that
the provisions listed in the purpose of the Hopi plan are consistent
with the Hopi Tribe's certification of completion of reclamation of
known coal-related problems, and (3) provide appropriate provisions for
reclamation of eligible lands, waters and facilities under a noncoal
reclamation program.
The Hopi Tribe chose not to respond specifically to the required
amendments, but rather proposed revisions to section I, A to provide
that the Hopi plan's purpose is to ``protect the health, safety, and
general welfare of members of the Hopi Tribe and members of the general
public from the harmful effects of past coal mining practices and past
mineral mining and processing practices.'' In addition, the Hopi Tribe
proposed other purposes at section I, A to (1) address adverse effects
of mining and processing practices on public facilities; (2) provide
for public facilities in communities impacted by coal or other mineral
mining and processing practices; and (3) address needs for activities
or public facilities related to the coal or minerals industry on Hopi
lands impacted by coal or minerals development.
The first purpose at section I, A of the Hopi plan is similar to
the provisions of sections 403(a)(2) and 411(c)(2) of SMCRA, which
provide, respectively, for the protection of health, safety, and
general welfare from the adverse effects of coal mining practices, and
from the adverse effects of mineral mining and processing practices.
The additional purposes at section I, A are similar to the provisions
of section 411(e) of SMCRA and 30 CFR 875.15(a), which provide for the
protection, repair, replacement, construction, or enhancement of
utilities and such other facilities serving the public adversely
affected by mineral mining and processing practices, and the
construction of public facilities in communities impacted by coal or
other
[[Page 15114]]
mineral mining and processing practices.
Because the Hopi Tribe previously certified that it had completed
the reclamation of all known coal-related problems (59 FR 29719, June
9, 1994), its plan appropriately provides for both coal and noncoal
reclamation. Therefore, the Director finds that section I, A of the
Hopi plan, which provides a general description of the purpose of the
Hopi Tribe's AMLR program, including descriptions of coal and noncoal
reclamation activities, is not inconsistent with sections 403 and 411
of SMCRA and meets the requirements of the Federal regulations at 30
CFR parts 874 and 875. Accordingly, the Director approves the proposed
revisions at section I, A and removes the required amendments at 30 CFR
756.18 (a) through (c).
5. Sections VI, A(1) (a) through (c) and B(1), Consent To Enter and
Public Notice
The Hopi Tribe proposed to revise its plan provisions at sections
VI, A(1) (a) through (c), by deleting provisions concerning the ability
to enter lands for emergency reclamation. The Hopi Tribe also proposed
to revise section VI, B(1) by deleting the phrase ``except in emergency
situations,'' from the requirement for the public notice when written
consent for entry cannot be obtained.
Deletion of the references to emergency reclamation and emergency
situations is consistent with the fact that the Hopi Tribe is unable to
exercise emergency powers on Hopi lands, because the Hopi Tribe did not
request authority to conduct emergency response reclamation under the
original Hopi plan submission (53 FR 24262, June 28, 1988), and it has
not subsequently sought emergency powers through the amendment process.
For these reasons, only OSM, and its agents, employees, and
contractors, are authorized to conduct emergency reclamation activities
on Hopi lands. Based upon OSM's exclusive emergency reclamation
authority on Hopi lands, the Director finds that the deletions of
references to emergency reclamation and emergency situations at
sections VI, A(1)(c) and B(1) are consistent with section 410 of SMCRA
and meet the requirements of 30 CFR 877.14. Therefore, the Director
approves these proposed plan revisions.
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), OSM solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Hopi plan (administrative record
No. HO-157).
(a) Bureau of Indian Affairs (BIA), Hopi Agency.--BIA commented on
October 11, 1996, that the ``Preface to Amended Reclamation Plan''
section of the Hopi plan should be revised to clarify the order of
priority for future coal AMLR projects (administrative record No. HO-
158). Specifically, BIA recommended that the last paragraph on page
iii, which provides a description of the Hopi Tribe's priority system,
should be revised to indicate that projects with the most adverse
impacts to the public are of the highest priority.
OSM responds that the preface of the Hopi plan provides for both
coal and noncoal reclamation projects, and that the order of priority
provided by the preface is consistent with the Federal regulations at
30 CFR part 875. Even though the Hopi Tribe provided certification of
completion of all known coal-related problems (59 FR 29721, June 9,
1994), it continues to have a responsibility to give any coal-related
problems that are found or that occur after certification top priority
for AMLR funding. The preface of the Hopi plan reflects this
requirement by stating that ``newly discovered projects adversely
affected by coal mining'' (emphasis added) would receive the highest
priority for AMLR funding. The Director finds that the language
contained in the preface of the Hopi plan concerning the priority of
coal projects is consistent with the counterpart Federal regulations at
30 CFR 875.13(a)(3), and is not requiring the Hopi Tribe to provide any
additional clarification about priorities as suggested by BIA.
(b) Arizona State Historic Preservation Officer (SHPO).--On
November 14, 1996, the Arizona SHPO responded that it was their opinion
that the proposed amendment should have no effect on any property
listed on the National Register of Historic Places or any project
eligible for listing (administrative record No. HO-160).
V. Director's Decision
Based on the above findings, the Director approves the Hopi Tribe's
proposed plan amendment as submitted on September 23, 1996.
The Director approves, as discussed in: Finding No. 1, the preface
to the amended reclamation plan, concerning eligible projects, section
II, A(1)(a), concerning eligible coal lands and water, section II, A,
(1)(g), concerning contractor responsibility for coal reclamation,
section II, B(1)(d), concerning noncoal reclamation after
certification, deletion of sections II, E, F, and G, concerning limited
liability, contractor responsibility, and reports for noncoal
reclamation, section II, E, concerning description of needs, proposed
construction and activities, section VII, B(8), concerning public
participation, section VIII, concerning organization of the Hopi Tribe,
and section XIV, concerning flora and fauna; finding No. 2, the preface
to the amended reclamation plan, concerning the introductory paragraph,
section II, A(1)(i), concerning limited liability for coal reclamation,
section II, B(1)(h), concerning limited liability for noncoal
reclamation, section II, B(1)(i), concerning contractor responsibility
for noncoal reclamation, and section II, B(1)(j), concerning reports
for noncoal reclamation; finding No. 3, section II, A(1), concerning
coal reclamation after certification, section II, B(1)(d)(ii),
concerning noncoal reclamation after certification, section IV, A(1),
concerning land acquisition, section IV, B(1), concerning management of
acquired lands, and section XII, concerning description of aesthetic,
cultural and recreational conditions of the Hopi Reservation; finding
No. 4, section I, A, concerning the purpose of Hopi plan; and finding
No. 5, sections VI, A(1) (a) through (c) and B(1), concerning consent
to entry and public notice.
The Director approves the plan provisions as proposed by the Hopi
Tribe with the provision that they be fully promulgated in identical
form to the plan provisions submitted to and reviewed by OSM and the
public.
The Federal regulations at 30 CFR Part 756, codifying decisions
concerning the Hopi plan, are being amended to implement this decision.
This final rule is being made effective immediately to expedite the
State or Indian tribe plan amendment process and to encourage States or
Indian tribes to bring their plans into conformity with the Federal
standards without undue delay. Consistency of State or Indian tribe and
Federal standards is required by SMCRA.
[[Page 15115]]
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State or Indian tribe AMLR plans
and revisions thereof since each such plan is drafted and promulgated
by a specific State or Indian tribe, not by OSM. Decisions on proposed
State or Indian tribe AMLR plans and revisions thereof submitted by a
State or Indian tribe are based on a determination of whether the
submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-
1243) and the applicable Federal regulations at 30 CFR parts 884 and
888.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
agency decisions on proposed State or Indian tribe AMLR plans and
revisions thereof are categorically excluded from compliance with the
National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the
Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State or Indian tribe submittal which is the subject of this rule
is based upon Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
established by SMCRA or previously promulgated by OSM will be
implemented by the State or Indian tribe. In making the determination
as to whether this rule would have a significant economic impact, the
Department relied upon the data and assumptions in the analyses for the
corresponding Federal regulations.
6. Unfunded Mandates Reform Act
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or private sector.
List of Subjects in 30 CFR Part 756
Abandoned mine reclamation programs, Indian lands, Surface mining,
Underground mining.
Dated: March 13, 1997.
James F. Fulton,
Acting Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter E of the Code of Federal Regulations is amended as set forth
below:
PART 756--INDIAN TRIBE ABANDONED MINE LAND RECLAMATION PROGRAMS
1. The authority citation for part 756 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and Pub. L. 100-71.
2. Section 756.17 is amended by adding paragraph (c) to read as
follows:
Sec. 756.17 Approval of Hopi Tribe abandoned mine land reclamation
plan amendments.
* * * * *
(c) Revisions to, additions of, or deletions of the following plan
provisions, as submitted to OSM on September 23, 1996, are approved
effective March 31, 1997:
Preface to Amended Reclamation Plan--Introductory paragraph and
Eligible Projects;
Section I, A--Purpose of Hopi plan;
Section II, A(1)--Certification of Completion of Coal Sites;
Section II, A(1)(a)--Eligible Coal Lands and Water;
Section II, A, (1)(g)--Contractor Responsibility (for coal
reclamation);
Section II, (A)(1)(i)--Limited Liability (for coal reclamation);
Sections II, (B)(1)(d) and (d)(ii)--Noncoal Reclamation After
Certification;
Sections II, (B)(1)(h), (i), and (j)--Limited Liability, Contractor
Responsibility, and Reports (for noncoal reclamation);
Deletion of sections II, E, F, and G--Limited Liability, Contractor
Responsibility, and Reports (for noncoal reclamation);
Section II, E--Description of Needs, Proposed Construction and
Activities;
Sections IV, (A)(1) and (B)(1)--Acquisition and Management of
Acquired Lands;
Sections VI, A(1) (a) through (c) and B(1)--Consent to Entry and
Public Notice;
Section VII, B(8)--Public Participation;
Section VIII--Organization of the Hopi Tribe;
Section XII--Description of Aesthetic, Cultural and Recreational
Conditions of the Hopi Reservation; and
Section XIV--Flora and Fauna.
Sec. 756.18 [Amended]
3. Section 756.18 is amended by removing and reserving paragraphs
(a) through (b) and removing paragraphs (c) through (h).
[FR Doc. 97-8103 Filed 3-28-97; 8:45 am]
BILLING CODE 4310-05-M