Authority: Sections 102, 201(c), 501(a), 503, 504, 505, and 521 of Pub. L. 95 87.

SECTION 730.1 Scope.

This Section gives an overview of the Subchapter, and is essentially unchanged from the proposed regulations.

SECTION 730.2 Objectives.

This Section lists the objectives for Subchapter C establishing the criteria and procedures for the Subchapter. Changes from the proposed regulations are editorial in nature.

SECTION 730.4 Responsibilities.

This Section delineates general responsibilities for the States, the Regional Director, the Director, and the Secretary for permanent regulatory programs as implemented by the States. The specific duties and responsibilities set out in this Section are based on the authority of Section 201 of the Act and on specific responsibilities delegated by the Secretary. Submission, review, and approval or disapproval responsibilities are discussed, as well as responsibility to maintain programs, to revise and amend programs and to invoke remedial actions should State programs not be administered effectively. Responsibility for administering funding assistance necessary to develop and enforce State programs is also established.

1. The comments addressing this Section raised several objections concerning the responsibilities assigned to the Director and the Secretary. Specifically, a commenter objected to the Director being responsible for approving and disapproving program amendments under Section 730.4(f). The final decision, it was felt, should lie with the Secretary. This proposal has not been accepted. Prior to issuance of the proposed regulations, the Secretary officially delegated certain responsibilities to the Director as allowed under Section 201(c) of the Act. This delegation included the authority to make the final decisions regarding program amendments. The Department has not changed this delegation. These decisions are not expected to be of a critical or controversial nature which would require Secretarial action. In those cases where Secretarial review is needed, it will be obtained under internal administrative procedures.

2. Other commenters raised similar objections to Section 730.4(g). These commenters objected to the Director's responsibility for both initiating Federal enforcement for a State program and withdrawing approval of a State program not being properly administered, maintained, or enforced. These commenters pointed out that the Act provides the Secretary with the authority to administer the program and that withdrawing a State program or initiating Federal enforcement should be considered as critical as the initial approval of a program. Commenters also recommended that, because the Secretary has the final responsibility for approving State programs, other equally critical decisions should be retained by the Secretary and not delegated to the Director.

After consideration of these comments, the Department has chosen to retain the Director's authority to initiate direct Federal enforcement. This authority has been duly delegated to the Director under the authority of Section 201(c) of the Act. However, as proposed in the comments, the more sensitive decision of withdrawing approval of a State program has been assigned in these regulations to the Secretary. Again, internal administrative procedures will permit delegation of this authority to the Director at a future date if such action is warranted.

SECTION 730.5 Definitions.

This Section contains definitions of two fundamental terms used throughout the Sections concerning State programs. The terms "in accordance with'' and "consistent with'' are used in many places in the Act to describe the degree of similarity required between the provisions of the Act and those to be established in a State program. The terms have been defined in these final regulations to provide a standard for uniformity between State provisions contained in a State program and provisions of the Act and the regulations. Authority for this Section is found in Sections 201(c) and 503(a) of the Act.

The Office received many comments commenting that the definitions for the terms "consistent with'' and "in accordance with'' be changed to allow greater variations between State programs and the Act and these regulations. Commenters interpreted the proposed definitions as requiring that the State law and regulations be virtually identical to the Federal law and regulations. The definitions for these terms have been revised and the new definitions, along with comments received, are discussed in the Preamble to Section 731.13, Standards and procedures for approval of alternatives to provisions of the regulations of this Chapter. SECTION 730.11 Inconsistent and more stringent State laws and regulations.

This Section is based upon the provisions of Section 505(a) and (b) of the Act and reiterates the congressional directive that the Federal Act and regulations supercede any State law or regulation which is inconsistent with the provisions of the Act or its regulations. Section 730.11(b) specifies that any State law or regulation which provides for more stringent land use and environmental controls and regulation of surface coal mining and reclamation operations than do the provisions of this Act and this Chapter, or which provide for the control and regulation of coal exploration and surface coal mining and reclamation for which no provision is contained in the Act or this Chapter, will not be construed as inconsistent.

SECTION 730.12 Requirements for regulatory programs in States.

This Section requires that a State or Federal program be adopted no later than June 3, 1980, for each State in which coal exploration and surface coal mining and reclamation operations are or may be conducted on non-Federal and non-Indian land. Authority for this Section is contained in Section 503 of the Act. The Office is aware of several States with extractable coal reserves in which mining is not occurring now, but is likely to occur in the near future. The Office encourages these States to make a determination as to the potential for future mining. If it is determined that mining is likely to occur in the near future, a State program should be submitted by the August 3, 1980 deadline. Section 731.12(b)(2) allows States to submit programs at a later date as they become aware of proposed mining operations.

700 {14951}Section 730.12 also has been revised to reiterate the requirements contained in Part 736 of this Chapter and to highlight specifically the provisions of Section 503(d) of the Act establishing exceptions to the June 3, 1980, deadline for implementation of a State or Federal program where a State has been enjoined from preparing, submitting, or enforcing a State program.

Specifically, coal surface mining and reclamation operations in a State where a State program is subject to an injunction will be regulated by the State pursuant to Section 502 of the Act until the injunction terminates, or for one year from the issuance of the injunction, whichever is shorter. At the end of this time period, the requirements of Sections 503 and 504 again will be fully applicable. Section 730.12(b) has been added to require the State to notify the Director of the issuance of any injunction which prevents or prohibits the State from preparing, submitting or enforcing a State program or any part thereof.

SUBCHAPTER C -- PERMANENT REGULATORY PROGRAMS FOR NON-FEDERAL AND NON-INDIAN LANDS, 30 CFR PART 731 -- SUBMISSION OF STATE PROGRAMS Authority: Sections 102, 201(c), 501(b) and 503(a) of Pub. L. 95 87.

Part 731 establishes procedures and requirements for submission of State programs. Under Section 503(a) of the Act, any State in which coal exploration and surface coal mining and reclamation operations are being conducted or may be conducted is eligible to submit a State program for approval.

SECTION 731.12 Submission of State programs.

This Section contains the submission deadlines for State programs and authority for this Section is contained in Sections 201 and 503 of the Act. Under Section 731.12(a), a State has until August 3, 1979, to submit its proposed program to the Office. Under the proposed regulations this Section required submission of a State program by February 3, 1979. Under proposed Section 732.12(b), a State could petition the Office for an extension of time beyond February 3, 1979, if it was necessary for its State legislature to act before a complete State program could be submitted.

Numerous commenters objected to the deadlines for program submission in Section 731.12. Most commenters stated that it would not be possible to develop and submit a State program by February 3, 1979. Even with a six-month extension to August 3, 1979, most believed that the schedule was unreasonable and perhaps unattain able. Most proposals for additional time suggested that the date be extended by the same number of months that the Office was late in promulgating the regulations. Although the Office is sympathetic to the commenters' concerns, the Act allows no discretion on the final program submission dates. The Act mandates a Federal program if States do not submit programs by February 3, 1979, or August 3, 1979, with a six-month extension, or if the State program is not approved by June 3, 1980. A Federal program must be established no later than June 3, 1980, if a State program has not been approved.

Section 731.12(a), however, has been revised to require submission on or before August 3, 1979. This change followed the Director's determination that legislative action was necessary in all States in order to prepare a State program in compliance with Section 503 of the Act. Another reason for this extension is that the effective date for these regulations establishing submission procedures falls beyond the proposed February 3, 1979, deadline.

Because of the modification in Section 731.12(a), Section 731.12(b) of the proposed regulations has been deleted. Sections 731.12(c) and 731.12(d) of the proposed regulations therefore have been lettered to Sections 731.12(b) and (c) respectively.

Two editorial changes have been made in Section 731.12(b). The term "under the Act'' in the proposed rules has been defined in a more specific manner as "August 3, 1977,'' and the phrase "become aware of'' has been made more definitive by using "anticipated.'' The Office believes that this latter change denotes more immediacy than was conveyed by the proposed language. Also, a new Section 731.12(b)(3) has been added, allowing submission after June 3, 1980, should the State program be enjoined as specified in Sections 730.12 and 503(d) of the Act. Section 731.12(c) is unchanged from the proposed regulations.

SECTION 731.13 Standards and procedures for approval of alternatives to provisions of the regulations of this Chapter.

This Section permits States to request variations from the regulations of this Chapter in order to develop regulatory programs to fit specific local requirements or local environmental or agricultural conditions of each State. This Section has been restructured and modified in response to many comments on the proposed regulations which pointed out inconsistencies between several Sections of the regulations and demanded greater clarity on the extent of variation to be allowed. Authority for this Section is contained in Sections 201(c), 503, 505, 518(i), and 521(d) of this Act.

1. Numerous commenters pointed out that while proposed Section 731.13 allowed alternative approaches, it was directly contradicted by the definitions of "consistent with'' and "in accordance with'' in Section 730.5. The definition of "consistent with'' required that State regulations be "the same as or similar to'' the regulations of this Chapter. The definition of "in accordance with'' required that State laws "be in agreement with'' the Act. Commenters stated that these definitions, especially the former, effectively limited the possibility of variation which Section 731.13 purported to allow. This inconsistency was compounded by a third standard for approval in Section 732.15(a)(2), "achieve the same or more stringent regulatory results.'' OSM agrees with these comments. All three Sections_730.5, 731.13, and 732.15(a)(2)_have been revised to include the same standard.

2. Commenters also addressed the question of how much variation should be allowed from the Federal Act and regulations. On this issue, commenters generally stated that Sections 101(f) and 201(c)(9) of the Act implicitly authorize a certain degree of flexibility for States in developing their programs and that this variation is explicitly authorized in Section 503 of the Act by the use of the words "in accordance with'' and "consistent with.'' In interpreting these phrases, however, commenters differed on the degree of flexibility. Differences ranged from insistence that broad flexibility be established for State programs to recommendations that the amount of flexibility be reduced.

700 Section 503(a) of the Act requires the submission of a program which demonstrates that the State has the capability of carrying out the provisions of the Act and meeting its purpose in part through State laws and regulations which are "in accordance'' and "consistent'' with the requirements of the Act and the regulations of this Chapter. The underlying principle of the Act is to establish minimum national standards for surface coal mining and reclamation. It is the mandate of Section 503(a) of the Act that States achieve at least this minimum level of environmental control and regulation. This principle is reiterated throughout the Act. Sections 101(f) and 102(g) of the Act provide the specific mandate for a national program, and Sections 503(a), 518(i), and 521(d) of the Act establish the specific standard of compliance (i.e., must be in accordance with, no less stringent than). Most importantly, Section 505 of the Act provides that the State laws and regulations which require more stringent land use and environmental control will not be considered inconsistent with the Act or the regulations.

{14952}OSM believes that these Sections clearly allow a degree of flexibility. The State provisions, however, cannot fall below the minimum standards established by the Act.

It is clear that Congress contemplated, through the use of the words "in accordance with'' and "consistent with,'' some variation be allowed. This concern was expressed specifically in Section 201(c)(9) of the Act requiring the Secretary to assist the States in developing a program that meets the requirements of the Act and, at the same time, reflects local requirements and local environmental and agricultural conditions.

3. Generally, commenters expressed confusion over the meaning and relationship between such words as "in accordance with,'' "same or similar,'' "no less stringent,'' "reflects local conditions,'' and "meets the requirements of.'' Specific proposals by the commenters largely reiterated these terms, however. Suggested phrases were "no less stringent,'' "meets the minimum requirements,'' "is identical to,'' "achieves the same regulatory result,'' "no less stringent and meets the minimum requirements,'' and lastly, "achieves the same result.'' (a) "No less stringent'' on its own is not accepted because the Office believes that the Act establishes certain minimum requirements that alternative provisions must meet. These minimum requirements must be met regardless of the stringency of the alternatives. Section 503(a) of the Act specifically requires that a State submit a program which demonstrates that it has the capability of carrying out the provisions of the Act and meeting its purposes. "Stringency'' by itself is only part of the standard required by the Act.

I11(b) "Meets minimum requirements,'' alone is insufficient and therefore not accepted. Section 505(b) establishes that the Secretary shall set forth any State law or regulation which is construed to be inconsistent with the Act, adding that State laws and regulations shall not be construed as inconsistent should they provide for more stringent land use and environmental controls and regulations. Equally important, minimum requirements may not be explicit in all cases. Some other standard is needed to help ensure that the requirements of the Act and regulations are achieved.

(c) "Is identical to'' is not accepted because Section 503(a) of the Act clearly requires that State laws and regulations only be "in accordance with'' and "consistent with'' the provisions of the Act and the Secretary's regulations. Section 201(c)(9) of the Act requires that State programs be granted some flexibility to strengthen the regulations of this Chapter to meet local requirements and environmental and agricultural concerns.

(d) "Achieves the same regulatory result'' is not accepted because regulatory result is difficult to define. Also, there are many minimum requirements stated in the Act which must be met that are clearly not results.

(e) "Capable of achieving same regulatory result'' is not acceptable for the same reasons as (d) above.

(f) "Two distinct standards,'' for State regulations and State laws as outlined in the proposed regulations was proposed and not accepted. The use of the words "in accordance with'' and "consistent with'' in Section 503(a) of the Act do not explicitly require different standards to be set for judging the acceptability of State laws and State regulations. In fact, both the Act and the legislative history demonstrate that Congress used these terms interchangeably when referring to State laws or regulations.

(g) "No standards.'' The Office believes that there must be a standard degree of conformity between State statutes and regulations and applicable provisions of the Act and the regulations of this Chapter. This degree of uniformity is specifically required by Sections 101(f), 102(a), 201(c)(9), 503(a), 505, 518(i), and 521(d) of the Act. In addition Section 503(a) specifically requires the State to demonstrate that it is capable of meeting at least these minimum standards. This proposal is therefore not accepted.

(h) "No less stringent and meets the minimum requirements.'' This standard ensures that State programs will achieve a certain minimum level of environmental control and regulation as mandated by Sections 101(g), 503(a), and 505 of the Act and at the same time utilizes a test set out in Sections 503, 518(i), and 521(d) for judging alternative regulatory provisions proposed by the States.

Minimum requirements, however, poses a substantial problem when applied to the regulations of this Chapter.

Minimum requirements can readily be equaled to minimum design criteria, thus requiring a very high degree of conformity to the regulations and negating the flexibility intended. OSM's solution is to apply no less stringent to both the Act and regulations and meets the minimum requirements to the Act alone.

The no less stringent and meets the minimum requirements standard complies with the intent and requirements of the Act.

No less stringent alone, applied to the regulations is consistent with the concept of allowing variation in State programs. Thus, a State program may vary from the regulations, but it may not be less stringent than either the Act or the regulations and it must meet the minimum requirements of the Act. Further, by applying this standard to both State laws and regulations, OSM recognizes that there is no clear dividing line between the two and therefore recognizes that there is no basis for applying different standards to them.

The Office also has included in the standard that State law and regulations include all applicable provisions of the Act and meet applicable provisions of the regulations of this Chapter. In evaluating alternative regulatory provisions the Office will require that all applicable Federal provisions be included, and that each applicable provision contained in the regulations must be met within a State's regulatory proposal. As discussed in Preamble to Section 732.15(b)(1) in regard to limiting required performance standards, "applicable'' modifies the standard so as not to require States to include or meet Federal provisions where the State can demonstrate that there is an absence of conditions which would make the provision meaningful.

4. In addition to the comments regarding the general standards for State variations, the Office received comments proposing that States have the ability to approve alternatives to the Office's performance standards on a site-by-site, permit-by-permit basis. These comments maintained that, provided the alternative practices achieve the same regulatory result, there is no statutory prohibition against this flexibility.

700 This proposal has not been accepted. Establishment of a case by case variance capability commits the Secretary to pass judgement on program submissions which may be largely unspecified. The mandate of Section 503(a) of the Act is clear. The State must demonstrate its capability of carrying out the provisions of this Act. Adoption of the site-by-site alternative would allow for approval of State programs which could not demonstrate fully the capability to achieve the minimum standards mandated by Section 503(a) of the Act.

The final regulations specify that any variation to provisions of the Secretary's regulations must be approved pursuant to Section 731.13, and contained in the State program. Site-by-site variation, to the extent allowed, is already covered in Subchapter K.

5. In the proposed regulations, the degree of allowable variation for State programs was defined by the phrases in accordance with and consistent with in Section 730.5. Many commenters stated that the standard defined in Section 730.5 was applied incorrectly to the submission procedures in Section 731.13 and was improperly stated in Section 732.15(a)(2) of the proposed regulations dealing with the criteria for approval. A number of comments were critical of the order and consistency throughout these three Sections. In an effort to meet these objections, the Office considered the following alternatives: (a) keep the standard in the definition and revise the other Sections to assure consistency, (b) delete the definition and place the standard in Section 732.15, and (c) place the standard in each specific regulatory provision.

{14953}The final regulations adopted alternative (a). Due to the interest generated by the definition Section, and the changes made, the Office believes that deleting the definitions would cause needless confusion. Comments sought consistent application of a given standard, not specific deletions. Similarly, the proposal to place the standard in specific regulations has not been accepted. The Office believes that paragraphs should remain the focal point for defining the relationship between Federal provisions and State provisions. 6. Several commenters proposed limiting variations to environmental performance standards. Others proposed restricting such a limitation to providing that any variation must be based only upon physical conditions.

These comments were not adopted. Section 201(c)(9) of the Act directs the Secretary to assist the States in the development of State programs which meet the requirements of the Act and at the same time reflect local requirements and local environmental and agricultural conditions. In this regard, the Office believes legislative intent is clear. Variation, in order to meet these minimum requirements, is allowed. In addition, Section 503 of the Act does not offer support for the limitations proposed by the commenters. Based on these Sections of the Act, Section 731.13 allows the State to propose alternative regulatory provisions as long as the State can demonstrate through documented evidence that the alternative will be no less stringest than provisions contained in the Act and the Secretary's regulations, and will meet the minimum requirements and include all applicable provisions of the Act. In addition, the State must demonstrate that proposed alternative are necessary because of local requirements or local environmental or agricultural conditions.

7. Some commenters stated that no variation should be allowed in the enforcement and penalty Sections. This comment has not been accepted. Sections 518(i) and 521(d) do not preclude alternative regulatory proposals. Both Sections require provisions which are "no less stringent than,'' and contain "the same or similar procedural requirements.'' The Office believes that these provisions allow the States a certain degree of flexibility in developing their total program as long as the provisions of the Act and the stringency standards are met.

8. A few commenters cited the provisions of Section 505 of the Act and 730.11 of the regulations as a means for providing variations. Such an interpretation suggests that States be allowed to employ alternative approaches, unless and until the Office could show them to be inconsistent with the Act or the Secretary's regulations. This proposal is not accepted because Section 503(a) of the Act requires the State first to demonstrate its ability to carry out the provisions of this Act and the regulations. This Section of the Act clearly places the burden upon the State to prove that any alternatives will meet the required standards. To facilitate this requirement Section 731.13 is necessary to provide procedures for the States in submitting alternative proposals.

In addition to changes brought about by development of the new standard, Section 731.13 has been revised to establish more clearly the State's responsibilities in proposing alternative regulatory provisions. Language has been added establishing the standard and procedure for use in proposing alternative provisions pursuant to amendments under Section 732.17. In many instances a State will not have sufficient data and analysis for an alternative at the time of program submission. Under Section 731.13, the State can propose alternatives at a later date as an amendment to its program when data and analysis become available. Any variation proposed by a State is subject to public review and hearings.

SECTION 731.14 Content requirements This Section of the final regulations establishes the content requirements for a State program submission. A general requirement under Section 731.14 is that the submission demonstrate that the State is capable of carrying out the provisions of the Act and achieving its purposes. Final Section 731.14 (a) through (c) requires that the submission contain enacted or proposed laws and regulations, including existing or pending laws and regulations that directly affect the proposed program, and a legal comparison between the State laws and regulations and the Act and regulations of this Chapter. Final Section 731.14(d) requires designation of a State regulatory authority. Final Section 731.14 (e), (f), (i), (j), and (k) requires descriptions of the proposed organization, including personnel and staffing functions, and the relationship between the regulatory authority and other involved agencies. Final Section 731.14 (l) and (m) requires descriptions of budget projections and a description of physical resources, such as vehicles. Final Section 731.14(g) requires descriptions of the necessary systems and procedures that will make up the State program. Final Section 731.14(h) requires statistical information describing coal surface mining in the State which is adequate to demonstrate that the provisions of the State program and the resources available to it are sufficient when compared to the current and projected coal mining activities in the State. Final Section 731.14(n) requires a description of an anthracite program where applicable. Final Section 731.14(o) requires a description of other programs that the regulatory authority also may be required to administer. Final Section 731.14(p) provides that the Director may request other information that may be necessary to evaluate the proposed program submission.

The authority for establishing the content requirements for a program submission is contained in Section 503 (a) and (b) of the Act. Section 503(a) requires that a State program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. The seven provisions of Section 503(a) of the Act amplify this requirement, providing the basis for State program submission content requirements.

700 In keeping with the guidance furnished by the Act, the Office adopted three principal objectives governing what information should be included in a State program submission. First, the Office believes that basic data on the size and nature of the coal mining industry in a State is fundamental to the development of a State program as envisioned in the Act. Such information also enables the Office to properly assess the adequacy of the program. Second, and most importantly, the State must provide detail sufficient to demonstrate that the State program meets the requirements of the Act and regulations. Finally, the State should be required to submit only that information and detail clearly necessary to demonstrate capability as required in the Act. Consequently, several content requirements have been eliminated and others have been made more flexible allowing the State to submit information and to select appropriate methods for describing State capabilities.

Proposed Section 731.14 (a) and (b) required that program submissions include copies of effective or enacted State laws and regulations giving the State full authority to implement the program. Some flexibility has been added in the final regulations, however. Final Section 731.14(a) combines proposed Section 731.14 (a) and (b), and now requires copies of enacted or proposed State laws and regulations. Comments proposing additional time to submit State programs are discussed in the Preamble to Section 731.12. Additional time to gain full authority through enacted laws and regulations is also discussed in the Preamble to Section 732.11. {14954}In allowing submission of laws and regulations that have not been fully enacted, the Office has established two major criteria. First, the laws and regulations must be in the "process'' of enactment. By this criterion, the Office means that the laws and regulations must not only be fully drafted but they also must have been introduced into the legislative or public review process and in a sufficiently timely manner to result in their enactment within the time frames established by these regulations. The Office may reject a State program submission as incomplete if laws and regulations have not been enacted and the State is clearly not making a good faith effort to enact the appropriate legislation. This, in turn, could lead directly to the development of a Federal program for the State.

The second criterion is that the State must have determined that the laws or regulations are "essential'' to allow the approval. It is expected that the State program submission will clearly show this finding and the reasons that the laws or regulations proposed are essential. Finally, the Office notes that allowing submission of proposed laws and regulations is intended to facilitate State program development and should not be construed as allowing States to delay the necessary enactment or rulemaking process. If a State choses to submit a proposed program based substantially on laws or regulations not fully enacted, it faces an obvious risk of ultimate program disapproval because of the short periods available during the later portions of the schedule. It could not prove impracticable or impossible because of time for the State to correct deficiencies identified during the public review and hearings and final review by the Office.

1. Proposed Section 713.14(c) required submission of copies of other State laws directly affecting the regulation of coal surface mining and amendments to existing laws or regulations which are under consideration or pending. Commenters raised objections to both parts of the proposed Section. A commenter pointed out that numerous laws and amendments are proposed every year, while few are passed. The commenter continued, that proposed Section 732.17, requiring notification of the Regional Director when a significant event or proposed change in State law or regulations will affect the implementation, administration, or enforcement of the approved State program, is adequate protection against such potential conflicts. Another commenter noted that OSM is charged with enforcing Pub. L. 95 87 only and argued that proposed Section 731.14(c) exceeds the Office's statutory authority.

OSM has elected to retain the requirements of Section 731.14(c). Under the test of Section 503(a) of the Act, the Office considers this information essential to the State's presentation demonstrating that it can carry out effectively the provisions of the Act.

Section 731.14(b) of the final regulations requires States to submit copies of other laws and amendments to laws and regulations enacted or pending which directly affect the regulations of coal exploration and surface coal mining and reclamation. Inclusion of other laws and regulations should alert the Office and the State to potentially conflicting laws and regulations which may create problems during enforcement of a State program. The Office encountered several instances of this problem during the initial program, e.g., conflicting water quality requirements relating to coal mining.

Proposed Section 731.14(d) (relettered) required a legal opinion from the Attorney General of the State affirming legal authority to implement, administer and enforce the program in accordance with the Act and consistent with the Federal regulations. Proposed Section 731.14(d) also required a Section-by-Section comparison of the State's laws and regulations with the Act and Federal regulations, explaining any differences and their legal effect. This provision has undergone two changes. First, the required legal opinion may be prepared by either the Attorney General or the regulatory authority's chief legal officer. Several commenters indicated that the legal staff of the regulatory authority may be in a better position to determine the authority of its program when an Attorney General's office has not been involved previously with the regulatory authority. Second, final Section 731.14(c) allows both the opinion and the Section-by-Section comparison to address proposed laws and regulations, when the required authority has not been established by the date of program submission. A revised opinion and comparison will be required, if laws and regulations later enacted differ from those of the proposed program submission.

2. Several commenters recommended deleting the Section-by-Section comparison of State's laws and regulations with the Act and this Chapter. These commenters further recommended deleting the requirement for an explanation of any differences and their legal effects. One said that the State's Attorney General will formulate his opinion utilizing appropriate procedures of his office and will thus carry the same legal effect, irrespective of his method of analysis. Other commenters said that any written Section-by-Section analysis should be prepared by OSM. Another comment asserted the Section-by-Section analysis was unfair and burdensome. Contrary to these comments, the Office believes a side-by-side comparison is necessary. Section 503(a) of the Act specifically requires the State to demonstrate its capability to carry out the provisions of the program. The Section-by-Section comparison is an essential ingredient of the State's demonstration of ability and program adequacy under this Section of the Act. With regard to the comment proposing that OSM prepare the side-by-side comparison, the Office believes that this is best performed by State officials most familiar with their own laws and requirements. Finally, this analysis will also assist the Office in evaluating proposals for alternative provisions pursuant to Section 731.13.

Proposed Section 731.14(d) has not been changed. It requires submission of the order or statute authorizing the State to carry out a State program and administer program grants.

Final Section 731.14(e) has not been changed from proposed Section 731.14(f), requiring a chart or table of organization for the regulatory agency and other agencies involved in the State program. The chart primarily will allow the Office to assess the adequacy of the program in terms of projected workload and time constraints imposed by the Act.

Final Section 731.14(f) (formerly Section 731.14(g)) is unchanged. This requires a copy of supporting agreements between agencies which will have duties in the program. These agreements are necessary to ensure program support within the proposed State program.

700 Section 731.14(g) (previously Section 731.14(h)) has been revised to allow a degree of State discretion in detailing proposed systems and processes. The revised language allows the use of "other appropriate means'' to describe proposed systems and processes. In short, whatever device the State determines to be most suitable may be used. 3. Several commenters called proposed Section 731.14(h), now Section 731.14(g), irrelevant and burdensome. A commenter stated that copies of the State's coal related laws and organizational charts should suffice. Another wrote that this Section requires States to develop systems and processes for over 16 specific categories and illustrate these by flowchart. Continuing, this commenter stated that Section 503 of the Act only requires a process for the review and issuance of permits, and argued that we should not strangle ourselves with flowcharts and paperwork. Another commenter suggested that a statement to the effect that these functions will be carried out in accordance with applicable regulations would be sufficient. The revision to final Section 731.14(g) allowing other appropriate means to describe proposed systems and procedures should reduce the burden to the States in preparing information required under this Section. Suggestions to reduce the coverage of this Section have not been accepted, however. Section 503 of the Act requires that the State demonstrate its capability to carry out the provisions of the Act. In addition to permitting, these provisions cover bonding, inspection, enforcement, public participation, etc. All are part of the total State program which the Secretary must approve. The information requested is essential for that purpose. Proposed Section 731.14(h)(1) required description of the State's proposed permitting system and also required the States to use a uniform numbering permit system adopted by the Office. A few commenters stated that each State regulatory authority should be allowed to establish a permit numbering system of its own or institute a system already in existence. They proposed that the Office develop a suggested permit numbering system for the States to adopt at their discretion. Another commenter asked why the Federal Government should dictate a uniform numbering system for permits. These comments were accepted and the numbering system has been deleted from the final regulations.

{14955}Final Section 731.14(g)(1) also has been revised to expand the required description to include receiving applications for new or revised approvals for coal exploration. This revision is basically editorial and combines proposed Section 731.14 (h)(1) and (h)(14).

4. Several commenters argued that proposed Section 731.14(h)(2) (i) and (ii) was in contradiction to Section 507(a) of the Act which states that permit fees "may be less than, but shall not exceed the actual or anticipated cost of reviewing, administering and enforcing the permit issued pursuant to a State or Federal Program.'' Proposed Section 731.14(h)(2) eliminated the Act's language ". . . may be less than . . .,'' and added, in Section 731.14(h)(2)(ii) the concept of "average estimated costs . . .'' While these two departures from Section 507 of the Act were believed to have no substantive effect, numerous commenters misinterpreted the proposed Sections to have removed the discretionary minimum fee level provided for in the Act. Other comments suggested that permit fee requirements be relocated to Part 771, General requirements for permits and applications.

The Office has accepted these comments. Fee requirements for a State program have been clarified to reflect the intent of Section 507(a) of the Act. Final Section 731.14(g)(2) now is written to conform to Section 771.25.

Proposed Section 731.14(h)(3) has not been changed and appears in these final regulations as Section 731.14(g)(3). This requires description of the system for posting, releasing, and forfeiting performance bonds or other equivalent sureties. Proposed Section 731.14(h)(4) has been revised and appears in these final regulations as Section 731.14(g)(4). This Section requires description of the procedure and system for inspecting and monitoring coal exploration and surface coal mining operations.

5. Several commenters challenged the authority of the Office to require citizen participation in State inspections. These commenters believe that other opportunities for public participation are adequate. They also fear that citizens may disrupt the inspection process or the mining operation. Another commenter expressed uncertainty as to what public participation can be included in an inspection. Another commenter noted that Section 731.14(h)(15) requires the State to describe all public participation and stated that it was therefore unnecessary in proposed Section 731.14(h)(4). The Office has not accepted these comments to eliminate the phrase requiring provisions for public participation in the inspection process. As required in Section 732.15(b)(5), States must have an inspection system consistent with the requirements of Section 517 of the Act and Subchapter L of the regulations. This requires that the State include provisions for public participation in inspections.

Proposed Section 731.14(h) (5), (6), (7), and (8) has not been changed. This appears in the final regulations as Section 731.14(g) (5), (6), (7), and (8). This Section requires the States to describe systems and procedures for enforcement, assessment of civil penalties, and holding of public hearings.

Proposed Section 731.14(h)(9) has not been revised and appears in the final regulations as Section 731.14(g)(9). This requires the State to describe the procedure for coordinating issuance of permits required under the Act and the regulations with other State, Federal, and local agencies.

6. In reference to proposed Section 731.14(h)(9), a commenter pointed out that some State laws provide only one agency statutory authority to issue permits and proposed that Section 731.14(h)(9) require consulting, not coordinating. This commenter interpreted coordinating to be a shared responsibility for issuing permits. In many States, however, surface mining and water quality control permits are issued by different agencies, necessitating a coordinating function. In addition, Section 503 (a) and (b) of the Act requires a process for "coordinating'' the review and issuance of permits. Thus, this alternative is not accepted.

7. A few commenters stated that involvement of Federal agencies, as proposed in Section 731.14(h) (9) and (10) should not be required. They argue that these requirements will be administratively and financially burdensome and will duplicate or replace involvement already in place between the responsible State and local agencies and their overseeing Federal agencies. This recommendation has not been ac cepted. Proposed Section 731.14(h)(9) is required pursuant to Section 503(a)(6) of the Act. Proposed Section 731.14(h)(10) (now (g)(10)) is required pursuant to other Federal laws, which must be implemented pursuant to the Act.

Some States have designated a State agency to administer Federal environmental, historical, and cultural laws and Federal permits associated with coal mining. The Historic Preservation Act is administered by the Heritage Conservation and Recreation Service through various State agencies. However, there are cases where a program affected by surface mining under the Act is directly administered by a Federal agency. Attempting to make allowances for the variety of administrative arrangements between Federal and State agencies would needlessly complicate the regulation.

8. A few commenters asked that the Office specifically incorporate into proposed Section 731.14(h)(10), consultation with the State Historic Preservation Officer concerning archaeological, historical, and cultural resources. The commenters stated that because of the importance of the cultural resources such required consultation should be clearly defined. One commenter suggested that consultation with other agencies be carried out on a regular basis, particularly prior to or during the permitting process. A few commenters asked that OSM incorporate consultation with the Historic and Cultural Preservation Laws. A commenter also recommended that the regulations include specific penalties and other sanctions sufficient to render willful destruction of cultural resources more expensive than avoidance of criminal behavior.

700 {14956}These suggestions have not been accepted. The Office believes the requirement that the State identify a proposed system or process for consulting with State and Federal agencies having responsibility for these matters is sufficient to assure compliance with other Acts and requirements with regard to other environmental values, particularly when viewed in light of the specific requirements of Subchapter F.

Proposed Section 731.14 (h)(10), however, has been revised to specifically include consultation with regard to archaeological values. Archaeological resources have been included as a specific value based on Section 507(b)(13) of the Act which requires consideration of such features in permit application reviews and Section 522 of the Act, with respect to the designation of lands as unsuitable for coal mining.

Proposed Section 731.14 (h)(11) and (12) has not been revised and appears as Section 731.14 (g)(11) and (12) in these final regulations. Final Section 731.14 (g)(11) requires the State to describe its program to designate lands unsuitable for surface coal mining operations. Final Section 731.14 (g)(12) requires a description of the procedure for monitoring, reviewing and enforcing the conflict of interest requirements with regard to State employees.

Proposed Section 731.14 (h)(13) has been revised and appears in the final regulations as Section 731.14 (g)(13). The proposed regulation required that a program submission include the description of the procedure for training, examining and certifying blasters consistent with Subchapter M. Because Subchapter M is being reproposed and will not be effective until sometime after promulgation of these regulations, final Section 731.14 (g)(13) requires that the State describe the procedure for training, examining, and certifying blasters no later than six months following promulgation of final Subchapter M. The initial program submission should describe procedures for developing the system to train, examine, and certify blasters once Subchapter M is effective.

Proposed Section 731.14 (h)(14) has been combined with Section 731.14 (g)(1). Proposed Section 731.14 (h)(15) and (16) has not been substantially revised and appears in the final regulations as Section 731.14 (g)(14) and (15). Final Section 731.14 (g)(14) requires a description of the procedure for providing public participation in the development, revision, and enforcement of State regulations, the State program and permits under the State program. Final Section 731.14 (g)(15) requires a description of the procedure for administrative and judicial review of the State program, including inspection and enforcement actions.

A new Section 731.14 (g)(16) has been added, requiring a description of the State program to provide assistance to small operators. This is in response to several commenters who pointed out that Section 507(c) of the Act requires that the determination of probable hydrologic consequences and the statement of the result of test borings be funded by the regulatory authority for small operators. Although final regulations issued December 13, 1977, established this requirement, the proposed regulations did not. The Office, therefore, has included the Small Operator's Assistance Program as a submission requirement in Section 731.14.

Proposed Sections 731.14 (i)(1) through (8) required that a program submission include eight specific items of statistical information, describing coal exploration and surface coal mining and reclamation operations in the state. Numerous comments were received addressing this requirement. Most questioned the need for the information in a program submission.

9. A commenter stated that the informational requirements of proposed Section 731.14 (h) are excessive and that it should be remembered that "a State regulatory authority has as its purpose for being, the assurance of reclamation, not the reassurance of OSM.'' This commenter further stated that while the Act requires the State to demonstrate its ability to carry out the provisions and purposes of the Act, it is also very specific about the mechanisms deemed necessary for this demonstration. According to the commenter, the proposed program content requirements go well beyond the intent of the Act. Another commenter stated that proposed Section 731.14 contained 45 specific mandates for data submission and that much of this detail is unnecessary and of little value in reviewing a State's application. Another commenter recommended that all required information should be based on "existing data.'' Another commenter stated that the information required on permits in effect, when considered with existing personnel and other resources of the regulatory authority, will provide a much more meaningful index of the State's ability to implement the permanent program. This commenter added that much of the information requested is neither available nor relevant and will be time consuming to prepare.

10. One commenter suggested deleting proposed items (1) through (8) and revising Section 731.14 (i) to read: "Statistical information describing coal exploration and surface coal mining and reclamation operations in the State, including, the number, size, and geographical distribution of surface and underground mines at the time of submission of the program.'' In response to these many comments, the Office has revised Section 731.14 (i) to provide the States with a degree of flexibility in the submission of data and statistics. Items (1) through (8) have been restated in final Section 731.14 (h) as "suggested,'' not mandatory requirements. However, program submissions must include information adequate to demonstrate that the provisions of the State program and the resources available to it are sufficient to meet current and projected coal mining activities in the State. Items (1) through (8) would, the Office believes, provide the type of information necessary to make such an evaluation. However, the State may elect to provide other similar information which will show the current and projected workload of its program.

700 11. There were several comments recommending expansion of proposed Section 731.14(i)(6) (now (h)(6)) to include the number of violations cited and their disposition during the interim program. Two commenters said that the frequency of inspection, taken alone, is no index to the effectiveness of a State's enforcement efforts. They continued that one must know the number of violations cited and their disposition before any reliable evaluation of State enforcement can be made. Another commenter suggested that citizen complaints regarding operations be included along with their disposition within the program submission. Another commenter asked for specific enforcement data for at least a three-year period prior to program submission. Another suggested inclusion of prosecution statistics.

This Section allows the Office to judge the State's capability to meet minimum Federal inspection frequency requirements in the permanent regulations. Proposed requirements for the history and progress of regulation in the State have been deleted because of a State's past history of administration is not a fair indicator of its future abilities under the Federal legislation. There was a wide diversity of State legislation prior to enactment of Pub. L. 95 87 and simple statistics will not give a reliable guide to the State's enforcement practices. For these reasons, the proposals to expand the language of Section 731.14(i)(6) have not been accepted.

12. Proposed Section 731.14(l) required the program submission to include a map showing office locations of the regulatory authority and other agencies involved in the State program, including the number of employees and job functions at each location. The Office received many comments protesting this requirement. Most commenters said that the requirement was burdensome and irrelevant. One commenter said the aim of the requirement was to ensure accessibility; however, a map is not a good indicator due to numerous other factors. This commenter continued that the distance and proximity of the Office to operations and the public would require some indication as to the location of either group. Another commenter stated that given the wide dispersal, particularly of the public affected by mining, such a relationship would be impossible to estimate, let alone illustrate. Another commenter called the map requirement: "a striking example of overly detailed requirements.'' In response to these comments, the map requirement has been deleted. Office locations however must be included in the program submission in response to final Section 731.14(m).

{14957}Proposed Section 731.14(n) has not been changed except for editorial clarifications. It appears as Section 731.14(l) in these final regulations. This Section requires the State to describe its existing and proposed budget for administration of the State program.

13. Proposed Section 731.14(p) required a narrative description of the State's history and progress of regulation. A large number of commenters felt this requirement was unnecessary and burdensome. A commenter stated that the capability to administer a permanent program at any given point in time is based more on the integrity and strength of the regulatory agency's director and staff than on the "progress of regulation in the State.'' Another commenter stated that this requirement is not authorized by the Act nor justified by any legitimate OSM need for purposes of program approval or disapproval. Another commenter stated that OSM would have already monitored the States' performance in microscopic detail and will have kept voluminous records and suggests deletion of the requirement. 14. Related to the same issue, two commenters asked that proposed Section 731.14(p) be revised to eliminate the first proposed clause and leave the second proposed clause requiring other information as appropriate to demonstrate the State's capability to administer a permanent regulatory program. Other commenters suggest the narrative history requirement be expanded. One commenter recommended requiring a record of past public participation.

The request to expand required documentation of past performance has not been accepted while the numerous comments recommending that the proposed history narrative be deleted in its entirety have been accepted. The intent of the Act is to bring about major changes in regulation of surface coal mining operations. The use of past history to determine whether a State program should be approved is inconsistent with that intent.

Proposed Section 731.14(r) required a description of other programs administered by the regulatory authority. This Section has not been revised and appears in the final regulations as Section 731.14(o). The Office believes this requirement is necessary to determine whether other obligations may interfere with new responsibilities under the State program.

Proposed Section 731.14(s) (now Section 731.14(p)) established that a State may be required to submit other information as the Director may require. This requirement is essential to enable the Director to request information addressing the unique characteristics of each State making a submission.

15. There were a large number of comments objecting to proposed Section 731.14(s). Many of these comments charged that the explicit content requirements, in Sections 731.14 (a) through (r) are in themselves excessive, and the inclusion of other information "as the Director may require,'' raises the possibility of extended disputes and negotiations with respect to the completeness of a State's program submission. A commenter proposed expanding this requirement by adding: "Such other information as the Director may, after reasonable notice, require to ensure the State sufficient time to respond to such requests and prevent unnecessary delay . . .'' in taking over a program. The Office has not accepted these suggestions, but has revised this Section to make it clear that the Director may require only such additional information requirements of Sections 731.13 and 731.14. Deleting Section 731.14(p) would deprive the Director of authority to obtain information needed for evaluation of State programs. Lacking such information, the Director could find it necessary to recommend program disapproval because some element had not been demonstrated as fully adequate by the material submitted. The Office believes it more appropriate to provide for a request for additional data than to leave only the more serious action of disapproval available when such a deficiency is found.

16. The proposed regulations contained no requirements that a State submit resource maps describing specific resources in relation to potential coal mining. One commenter suggested that Section 731.14, content requirements be expanded to include three maps as follows: a. A State map or maps showing streams contaminated with acid mine drainage with a description of the problem by watershed.

b. A State map or maps showing location, type and size of abandoned mines. c. Maps indicating the relationship of present and potential mine areas to prime farmland and unique historical and archaeological features.

This suggestion for additional maps has not been accepted. The pictorial information provided by these maps would be useful in generally understanding surface mining within the State. However, the information gained pertinent to evaluating a State's capability to properly administer the Act would not outweigh the cost of preparing such maps statewide and the time consumed in performing the job. In addition, much of this information will be generated on a site-by-site basis as a requirement for permit applications or included in the State's abandoned mine reclamation plan under Subchapter R of this Chapter.

700 17. A number of commenters suggested that OSM have an evaluation team visit each State before program submission to gather the statistical and technical information required by Section 731.14. In this proposal, OSM would evaluate their findings and submit a written report which would be incorporated into the State program. In support of this alternative, a commenter wrote that OSM should send a State program review team to each State to interview staff and administrators and send a written finding that details program deficiencies to the regulatory authority. Another commenter suggested an on-site evaluation after program submission. Another commenter stated that the burden for proof of an acceptable program should be on OSM and not on the States.

With regard to recommendations to require OSM to visit States and evaluate proposed programs, OSM believes that such visits and evaluations are not an effective way of gathering the required data and would frustrate the Act's emphasis on State development of a program. This approach would be time consuming in that most of the data requested would still have to be prepared for presentation to the evaluaters. Public participation and hearing requirements would make it difficult to accept less than complete responses to the requirements of Section 731.14, thus using most of the preparation time required under the proposed guidelines. In addition, because of scheduling difficulties, the evaluation team process may actually further delay the timetable for program submission and approval. This alternative is therefore rejected. This does not mean that OSM staff will not aid and meet with States in order to review and discuss their submittals.

{14958}The proposed regulations did not include a Section establishing requirements dealing with meetings between the Office and a State regarding program submissions. These final regulations make no change in this area and there is no Section establishing requirements for program development meetings between the Office and a State.

18. The Preamble to the proposed regulations stated that there would be no ex parte contact following submission of a State program. Instead, according to that Preamble, following program submission, the Office would afford interested citizens and groups an opportunity to attend any meeting between OSM and the State. The Preamble also stated that OSM intended to meet often with the State prior to program submission to assist in the development of the program. Several commenters contended that it is certain that key program decisions will be made during these presubmission meetings. These commenters proposed that these discussions also be open to the public. The same commenters offered an alternative to open meetings by suggesting that the Office hold public briefings from time to time in an effort to obtain public input and to keep the public involved. In contrast, one State agency proposed that the following be inserted in the regulations: "The regional director will at the request of the State regulatory authority assist the States in an advisory capacity in the preparation and development of a State program. In this capacity he may conduct preliminary reviews of the State program or any part thereof without being required to initiate public notices and/or participation.'' The Office has not accepted these comments to establish requirements within the regulations for presubmission and postsubmission meetings between the Office and a State to discuss program development. These final regulations therefore do not specifically prohibit ex parte contact prior to or following program submission. It should be noted that this explanation represents a change in intended policy from that contained in the Preamble to the proposed regulations. The recommendation to change the regulation to provide for open meetings between the States and OSM has not been accepted since it is not required by the Act. The presubmission meetings will be crucial to program development and the Office intends to meet often with States during this time to provide assistance. Many of these meetings are likely to be working sessions which extend over days or weeks. With regard to meetings following program submission. The Office intends to issue procedural guidelines prior to submission of State programs. These guidelines will address the format for postsubmission exchanges that will occur between OSM and the State. It must be noted that the final regulations provide for an additional period of time following program submission in which States will be permitted to make modifications, changes and additions to programs. Certainly there must be free exchange between OSM and the State during this additional period for program modification. The provisions for public participation in the development and approval process are discussed further in Part 732. SUBCHAPTER C -- PERMANENT REGULATORY PROGRAMS FOR NON-FEDERAL AND NON-INDIAN LANDS, 30 CFR PART 732 -- PROCEDURES AND CRITERIA FOR APPROVAL OR DISAPPROVAL OF STATE PROGRAM SUBMISSIONS Authority: Sections 102, 201(c), 501(b), 503, 506, 507, 508, 509, 510, 511, 512, 513, 514, 515, 516, 517, 518, 519, 521 and 522 of Pub. L. 95 87.

Part 732 of the regulations provides criteria and procedures for review and approval or disapproval of State program submissions. Authority for these provisions is contained in Sections 503(b) and (c) of the Act. This Part also establishes the procedures and criteria for amending approved State programs.

Commenters have raised three major issues in this Part. First, there was a great deal of concern and interest in the review procedures of the State program submissions. Interest in this area dealt with questions of submission and approval deadlines as well as with the type of involvement the public will have in the review process. The second major issue concerned criteria for approval. Commenters in this area again were chiefly concerned with internal procedures of review and approval. Third, commenters showed great interest in the amendment section. Comments in this area addressed the inconsistencies contained in the proposed regulations and also suggested changes to the amendment procedures.

One important change in Parts 731 and 732 is the establishment of a new timetable for program submission and review. In Part 731 the program submission date has been extended six months to August 3, 1979. This extension, however, requires a revision of the program review procedures. Set forth below is the new timetable for program review and an explanation of how this timetable will be implemented. A more detailed discussion of the comments and specific Sections in Part 732 will follow.

700 As now set forth in Part 732 for programs submitted on or just prior to August 3, 1979, the Regional Director will hold a public review of the initial program submission on or about September 15, 1979, to discuss the program and its completeness. States will have until November 15, 1979, to make additions and modifications and to submit evidence of full legal authority with copies of enacted laws and regulations. States that do not submit full legal authority at this time will have their program disapproved by initial decision of the Secretary no later than February 3, 1980. However, pursuant to Section 503(c) of the Act, these States will have an opportunity to resubmit programs with enacted laws and regulations for review and approval or disapproval.

All program submissions, whether they contain enacted or proposed laws and regulations, will be subject to a public hearing scheduled during late December 1979 or early January 1980. This hearing will be held for all submissions even though those without enacted laws and regulations will be subject to a second public hearing following enactment of necessary authority. The arrangement acknowledges the short time available for the public to review revised program submissions before the second public hearing. The requirement for two review periods and two public hearings for submissions that do not include enacted authority prior to the first hearing should provide citizens adequate opportunity for input. Following the initial public hearing, the Secretary must issue a decision approving or initially disapproving the program. This decision must be issued within six months of the receipt of a program submission by the Regional Director but no later than February 3, 1980. States whose programs do not include full legal authority in the form of fully enacted laws and regulations prior to the public hearing will be disapproved under the initial decision. These States and States with disapprovals for other reasons may resubmit a revised program on or before April 3, 1980. All program resubmissions must include full authority through enacted laws and regulations. Another hearing will be held on or about May 3, 1980. The final decision of the Secretary approving or disapproving the program will be issued by June 3, 1980.

With the new timetable contained in the final regulations States are allowed until November 15, 1979 to make modifications to the submission including the addition of full legal authority. If a program is initially disapproved, States are allowed to make further modifications and add full legal authority through enacted laws and regulations until April 3, 1980.

{14959}Following is a timetable listing the key dates for submissions, review, approval or disapproval and resubmission of State programs. The regulations, however, are drafted so as not to limit earlier submission, and earlier submission will result in an earlier review and decision by the Office and the Secretary.

Submission, Review, Approval or Disapproval Timetable Latest Submission_August 3, 1979.

Public review sessions_written public comments due_September 15, 1979.

Public hearings_from December 15, 1979 through January 10, 1980.

Written public comments due_On date of public hearing.

Secretary's decision_February 3, 1980.

Latest resubmission for disapproved programs_must include full legal authority_April 3, 1980. Public hearing for program resubmissions_on or about May 3, 1980. Written public comments due_on or about May 3, 1980.

Final Secretary's Decision_June 3, 1980.

The new timetable is consistent with the key dates established in Sections 503 and 504 of the Act. This revision eases the time constraint imposed by the requirement of full authority at date of submission that appeared in the proposed regulations. It gives States more flexibility by allowing them to modify programs following an informal public review and comment period.

There is sufficient flexibility within Section 503(a) of the Act to allow States additional time to acquire full legal authority after submission of their State programs. The public will be entitled to review proposed laws and regulations for the period of the public review and still will have at least 30 days to review enacted laws and regulations before the public hearing. For those States that resubmit corrected programs there still will be at least a 15-day period for the public to review enacted authority before the second public hearing is held. The Office believes that States whose legislatures meet in 1979 should be able to enact laws and regulations before November 15, 1979, and submit them to the Regional Director so they may be made available for public review. For these States the formal public hearings to be held in late December 1979 or early January 1980 will provide the public at least 30 days for review and analysis of enacted laws and regulations. This alternative is preferable to others suggested by commenters because it requires no tampering with the June 3, 1980, dead line for permanent programs, contained in Section 504(a) of the Act.

Discussed below are the specific comments received on Part 732 and all changes that have been made by the Office. Because of the large volume of comments and the detail needed to respond to them, the Office has outlined its discussion by Section.

SECTION 732.1 Scope.

This Section remains essentially the same as in the proposed regulations except for a few minor editorial changes.

SECTION 732.4 Responsibility.

This Section establishes the responsibilities for the Regional Director, the Director and the Secretary and is restructured into three Sections. The changes that have been made are editorial. SECTION 732.11 Review by the Regional Director.

1. Section 732.11(a), concerning initial program review by the Regional Director, has been substantially revised due to the new timetable discussed previously. This Section requires the Regional Director to publish in the Federal Register and in a newspaper of general circulation in a State a notice meeting certain specified requirements. This Section now requires that the notice provide the location of each Office within the State where copies of the program submission are available for review and also allows the public 30 days within which to submit comments. Lastly, Section 732.11(a)(4) now makes a public review meeting mandatory.

2. In Section 732.11(b) the revisions have been less extensive. Due to the new review timetable discussed previously, the Regional Director now has 60 days to publish his determination of completeness.

3. Sections 732.11 (c) and (d) also have been amended due to the new review schedule. Under this new schedule, modified program submissions must be returned to the Regional Director no later than November 15, 1979. If required modifications have not been made, the program submission will be disapproved under the Secretary's initial decision (Section 732.11(d)). The provision requiring the initiation of procedures to implement a Federal program has been deleted. This provision was criticized by many commenters as too drastic. The Office agrees. The new submission and review timetable should give the State greater flexibility and time to submit an acceptable program.

700 Submissions that do not include full authority through enacted laws and regulations by November 15, 1979, will be disapproved under the Secretary's initial decision. Enacted laws and regulations may still be added to the program and resubmitted under Section 732.13(f) for review and final decision by the Secretary.

SECTION 732.12 Notice and Public Hearing Requirements.

1. Section 732.12 establishes procedures for public hearings to review the initial State program submissions. At least one public hearing is specifically required by Section 503(b)(3) of the Act. As discussed previously, the new review timetable requires hearings to be held in late December 1979 or early January 1980 for States that submit programs just prior to August 3, 1979 or that wait until or just prior to November 15, 1979 to make additions or modifications to program submissions. Paragraph (a) sets forth the notice requirements for the public hearings. Such notices will include information on how and where the public can review the State program submissions as well as specifying the comment period and date of the public hearing.

2. Section 732.12(b) sets out the date of the public hearing as well as the type of procedures that will be followed in the hearing. Because of the new timetable for review, the public hearing will now be held no sooner than 30 days after publication of the notice required in Section 732.12(a). Given the new provision in Section 732.11 which allows for additions and modifications to the initial program submission, there is not sufficient time for a 60-day notice. However, this is offset by more extensive early public review. This Section also requires a public hearing for all program submissions although the submission does not include enacted laws and regulations by November 15, 1979. If a State program submission includes proposed laws and regulations which the State believes will eventually be enacted, the public hearing under Section 732.12(b)(2) will be used to review the proposed program and proposed authority. When a State's laws and regulations are fully enacted, another public hearing will be held to review them. This arrangement allows public involvement throughout the review process without curtailing the flexibility needed by the States to develop an acceptable program.

3. The provision in Section 732.12(b) relating to additional hearings has been deleted. The Office anticipates holding only one public hearing for most State submissions (in addition to the public review meeting). However, if a program is disapproved and a revised program is resubmitted, another public hearing will be held to review the final submissions.

{14960}4. Section 732.12(b) also provides that the public hearings will be informal and follow legislative procedures. Several commenters suggested quasi-adjudicatory procedures including the right to cross-examination or to question witnesses. OSM has not adopted this alternative. Neither the Constitution nor the Administrative Procedures Act requires more than legislative type procedures. See Vermont Yankee Nuclear Power Commission v. NRDC, 435 U.S. 519 (1978); South Terminal Corporation v. EPA, 504 F. 2d 646 (1st Cir. 1974).

SECTION 732.13 Decision by the Secretary.

1. Section 732.13 establishes the procedures for Secretarial approval or disapproval of a State program submission. Authority for this Section is contained in Section 503 (b) and (c) of the Act. The changes that have been made in these five Sections are nonsubstantive and editorial in nature. In Section 732.13(d) the "180-day'' time limit has been changed to "six months'' to be consistent with the language in Section 503(b) of the Act.

2. A commenter on these Sections objected to the requirement in Section 732.13(b)(2) concerning concurrence by EPA. The comment stated that this exceeds the authority of the Act. This requirement, however, has been left in regulations. Under Section 503(b) of the Act, the Secretary must obtain the written concurrence of the Administrator of the Environmental Protection Agency before a State program is approved.

3. A few commenters suggested that Section 732.13 of the regulations provide a preliminary disapproval decision in less than 180 days for those States where disapproval of the program would necessitate legislative action prior to resubmission. This suggestion has not been accepted by the Office since such procedures would be cumbersome and are not specifically required by the Act. Moreover, the Office has already addressed this problem during the initial review by the Regional Director under Section 732.11. During this time the Office will make every effort to work with the States to resolve program deficiencies.

4. Section 732.13(f) provides the procedures to be followed by a State if the Secretary disapproves the initial program submission. Section (f) states that resubmitted programs will be reviewed under the procedures of Section 732.12. In all cases, this hearing will be the second public hearing for the proposed program. Emphasis by the Office during this second public hearing will be on the portions of the proposed programs that have been revised since the first hearing. Under the revised time schedule for review, this Section provides that the public review and comment period may be shortened to not less than 15 days. The public hearing also may follow public notice by not less than 15 days. Because this will be a second hearing and a second opportunity to comment, the Office believes that this shorter comment period will not hinder public review.

5. The Office also has made one editorial change. Resubmission of a revised program should be made to the Regional Director and not the Director as required in the proposed regulations.

6. Section 732.13(g) has been added to this Section in order to clarify the effect of not resubmitting a program within the 60 day period provided in Section 732.13(f). If a State fails to meet this deadline, which may be as late as April 3, 1980, the Secretary will issue a final disapproval and publish his decision and the basis for it in the Federal Register.

7. Section (h), formerly Section 732.13(g), provides that a program submission cannot be approved unless it can be approved in whole.

700 Section 732.13(h) also provides that the publication date of the Secretary's decision approving a program represents the official starting date for the State program. This language has been added to clarify the starting date which was not specified in the proposed regulations.

The comments that full legal authority be developed after Secretarial approval or alternately on the effective date of the program are beyond the scope of the Act and cannot be accepted. Section 503(a) of the Act requires that the State have the capability of carrying out the provisions of the Act and meeting its purpose through enacted laws. Proposed laws do not meet this standard. Additionally, Sections 503(b)(1), (2) and (3) of the Act require involvement of the public and EPA, as well as Agriculture and other Federal agencies in the approval process. Without fully enacted laws, meaningful comment and review would be impossible. Lastly, Section 503(b)(4) of the Act provides that the Secretary may not approve a State program until the State has the "legal authority'' for enforcement of the environmental performance standards. These specific statutory directives clearly show that the State must have full legal authority prior to approval.

8. A new Section 732.13(i) has been added setting out the requirements for conditional approval. This Section allows the Secretary to conditionally approve a State program where the program is found to have minor deficiencies. The provisions of this Section limit the types of deficiencies and establish that unless they are corrected within a specific time, the program will be disapproved in whole by the Secretary. This disapproval will then represent the final decision by the Secretary and will constitute the final decision required under Section 732.13(f).

Although not specifically provided in the proposed regulations, the language in proposed Section 732.16 (Terms and Conditions) would have allowed conditional approval of State programs. Because of the various delays encountered by the Office after enactment of the Act, the Office believes that a limited form of conditional approval is authorized. The clear mandate of the Act, as expressed in Sections 101(f) and 201(c)(9), is that the primary responsibility for implementing the Act should rest with the States. Because of the time constraints now experienced by the States, the Office feels that this Section will give the Secretary some flexibility to conditionally approve programs where minor deficiencies must be overcome and where the State has been making a good faith effort to develop an acceptable program.

9. Several commenters argue that there is no authority to disapprove a program for minor deficiencies in certain parts. Other commenters claim that there is authority to approve programs that are missing certain parts. These comments contend that Section 503(c) of the Act contemplates approval or disapproval of a "portion thereof.'' The final regulations retain the requirements that final Secretarial approval of a State program be given only if the program can be approved in whole. This is specifically required by Section 503(a) of the Act which provides that a State must demonstrate the ability to carry out all the provisions "in whole or in part.'' Sections 503 (b) and (c) of the Act apply only to the Secretary's initial action. State programs or portions not approved must be resubmitted within sixty days. In fact, Section 504(a)(2) of the Act requires the Secretary to implement a Federal program if a State fails to resubmit an acceptable State program within sixty days of disapproval of a proposed State program. It is clear the Act contemplates approval of a total State program and not portions thereof. Partial approval, as suggested, would allow the States to implement only the most desirable parts of the program, leaving the more difficult, expensive, and politically undesirable actions to OSM. Partial approval could also lead to dual administration and likely chaos as well as creating judicial confusion (e.g., to whom should an operator appeal; which court has jurisdiction).

The commenters did present sound suggestions for not disapproving a State program because of minor deficiencies. These comments stated that the proposed regulations would require disapproval and result in implementation of Federal programs where a State's good faith attempt to obtain approval is frustrated by a technical or minor deficiency which cannot be corrected before the deadlines for revision are passed. Because of the time constraints experienced by the States in developing acceptable programs and in response to these comments, the Office added Section 732.13(i) allowing for conditional approval of State programs.

{14961}10. Section 732.13(i) in no way allows approval of State programs that do not provide implementation and administration for all processes, procedures and systems required by the Act and these regulations. Instead, it only will be utilized upon a showing that certain deficiencies of a State program will be corrected expeditiously after condition approval. Failure of a State to make the corrections as established in the conditional approval shall result in automatic disapproval of the program and implementation of a Federal program under Part 736 of these regulations. Through Section 732.12(k) the Office retains as much flexibility as is legally possible in attempting to assist the States. There also should be a clear understanding that failure to meet the conditions and deadlines will require immediate implementation of a Federal program.

SECTION 732.14 Resubmission of State programs.

1. Section 732.14 provides that should the State program submission be disapproved under Section 732.13(f), the State must wait until after implementation of a Federal program before another program submission can be made. Section 732.14 also establishes that resubmissions shall be made and acted upon according to the same requirements, procedures and within the same timeframes except for specific dates as initial submissions. Authority for Section 732.14 is contained in Sections 504(a)(2) and (e) of the Act. Section 504(a)(2) of the Act requires that the Secretary implement a Federal program should a State fail to resubmit an acceptable State program within sixty days of disapproval of a proposal State program. Section 504(e) of the Act then provides that a State which has failed to obtain the approval of a State program prior to implementation of a Federal program, may submit a State program at any time after such implementation.

2. Several commenters objected to proposed Section 732.14. They contend that should a State submit its program prior to August 3, 1979, the Secretary would then make his determination of approval or disapproval prior to February 3, 1980, and second approval or disapproval prior to June 3, 1980. These commenters stated that a Federal program shouldn't be required until June 3, 1980, and that States ought to be given every opportunity to resubmit proposed programs right up until the time that a Federal program is required. The commenters contend that Section 504(e) of the Act means that a State which has failed to obtain the approval of a State program prior to implementation of a Federal program may submit a State program any time thereafter. Commenters also argue that a restriction on resubmitting State programs is contrary to the intent of the Act and not authorized. The Office has not accepted these proposals of their rationale. The mandate of the Act is specific. Section 504(e) of the Act provides "A State which has failed to obtain approval . . . prior to implementation of a Federal program may submit at any time T3after such implementation '' (emphasis supplied). Congress provided in Section 503 of the Act two opportunities_an initial submission and one resubmission. After disapproval of a resubmission, a Federal program is mandated. The Office does not have to wait until June 3, 1980, to implement a Federal program; rather, that is the latest date for implementation.

SECTION 732.15 Criteria for approval or disapproval of State programs. S4700 1. This Section establishes the criteria for approval or disapproval of State programs. The Secretary shall approve or disapprove a State program on the basis of information contained in the program submission and information gained at the public hearing and other information.

2. Sections 732.15 (a), (b), (c) and (d) list the requirements that the State program, State laws and regulations and State regulatory authority must meet before the Secretary can approve the program. The authority for these requirements is contained in Sections 503(a) and (b) of the Act.

3. Final Section 732.15 has been renumbered due to the deletion of proposed Section 732.15(b) and several other proposed Sections. This Preamble discussion identifies each deleted provision and lists the proposed and final Section numbering for provisions that have been retained or revised.

4. Section 732.15(a) sets forth the basic requirements contained in Section 503(a) of the Act.

5. Proposed Section 732.15(a)(1) requiring a good faith demonstration by the State has been deleted in the final regulations. Several commenters pointed out that no provision in the Act states or suggests that State permanent programs can be disapproved on a subjective evaluation by the Secretary of its good or bad faith concerning its interim program performance. Other commenters stated that "this purely subjective determination is not only unauthorized by the Act, it runs counter to the requirement in Section 503 of the Act that States demonstrate only the capability to carry out the Act.'' Another commenter points out that with the vagueness of the term it will be impossible to judge a program's effectiveness in a manner that will hold up in court if a program is denied and subsequently challenged. Other comments regarded the irrelevancy of an initial program evaluation, versus the ability to implement a permanent program, in that items such as money, manpower and legal authority, may not have been available in sufficient quantities during the initial program.

The Office has elected to delete proposed Section 732.15(a)(1). As noted in comments received, past performance is determined by factors which may not necessarily relate to future intentions or capabilities. Such good faith judgments would be difficult to administer consistently and objectively. Part 733.12 more appropriately provides for such evaluations where maintenance of a State program is not satisfactory.

I116. In addition to the deletion of proposed Section 732.15(a)(1), proposed Sections 732.15(a)(3) and (a)(5) have been combined into Section 732.15(b) for reasons of clarity. Comments on these proposed sections will be discussed in Section 732.15(b).

7. Section 732.15(b) has undergone considerable revision and modification. This Section requires the Secretary to find that the State regulatory authority has the authority under State laws and regulations pertaining to coal exploration and surface coal mining and reclamation operations and the State program includes provision to accomplish 16 separate requirements. The specific requirements are listed as Sections 732.15(b)(1) through (16). Included in these requirements is a new provision concerning assistance to the State's small operators as required under Section 507(c) of the Act. This requirement for a small operator's assistance program was added in response to comments that pointed out that Section 507(e) of the Act required this provision. The content requirements for a State program submission have also been revised.

8. Proposed Section 732.15(a)(3) required that the State regulatory authority have full and exclusive authority under State laws and regulations to implement, administer and enforce the State program pursuant to Sections 503(a) and 731.12 of the Act and regulations respectively. The Preamble to the proposed regulations failed to explicitly establish this point. This gave rise to many questions from commenters asking whether authority for various functions of the program could be vested in other contributing agencies. One comment suggested that proposed Section 732.15(a)(3) provide for the inclusion of the statutory authority of other State agencies having a delegated role in the State program to avoid duplication. The same comment stated that Section 503(a) of the Act, under provision (6), provides for such inclusion as does Section 731.14(f) of the proposed regulations. These proposals are not consistent with Section 503(a)(3) of the Act, however. The final regulations in Section 732.15(b) require the State regulatory authority to possess the authority required under a State program. Through memorandums of understanding and other agreements, other agencies may implement, administer and enforce parts of the program. However, the agency designated as the regulatory authority must possess all required authority. 9. Related to the issue of exclusive authority is the extent to which a State regulatory authority may delegate functions or responsibilities of an approved State program to another agency. The Preamble to proposed Section 731.14(m) stated: "The Office does not envision approval of a State program if the functions of inspection and enforcement are handled by staff other than regulatory staff. Inspection and enforcement must be incorporated within the regulatory authority.'' Several commenters objected to this Preamble requirement. One State intends to satisfy the Act's coal exploration provisions for inspection and enforcement with personnel from other agencies. That State contends that this practice is already in place and working efficiently and for the Office to require a change would be unreasonable. Others pointed out existing practices of providing water quality inspection and enforcement with personnel from other agencies.

These suggestions have been accepted and the Office will allow the Regulatory Authority to delegate various functions to other agencies where a State can demonstrate that utilization of professional and technical personnel from other agencies is reasonable and practical and achieves the purposes of the Act.

The Office, however, strongly supports State efforts to develop programs with functions and responsibilities including inspection and enforcement capabilities unified within the regulatory authority. The ability to delegate certain functions under limited conditions does not in any way or manner alter the requirement in Section 732.15(b) that the designated regulatory authority must possess all required program authority.

10. Proposed Section 732.15(a)(3)(i) required as a condition for approval that the program include laws and regulations to implement, administer and enforce environmental protection performance standards consistent with Subchapter K of this Chapter. A commenter objected to this provision that laws and regulations are necessary to enforce all the performance standards of Subchapter K. The commenter suggests that this would result in States having to adopt irrelevant and inapplicable standards. The commenter asks that the word "applicable'' be added to the requirement mandating that the State enforce all permanent performance standards of Subchapter K. This comment has been accepted and final regulation Section 732.15(b)(1) limits the requirement to applicable performance standards.

700 Addition of the word "applicable'' will in no way relieve a State from its obligations to meet the intended goals of the Act. Inclusion of the word "applicable'' relieves the State from its compliance responsibilities only if the State can demonstrate that there is no situation within the State which would be covered by the Act and regulations. For example, the special protections offered alluvial valley floors are only applicable west of the 100th meridian and therefore need not be included in programs submitted by States east of that meridian.

11. Proposed Section 732.15(a)(3)(ii) provides as criteria for approval that the State program include authority to implement, administer and enforce a permit system consistent with the regulations of Subchapter G of this Chapter and to require permit fees with each application such that the approximate costs or review, administration and enforcement of such permits are recovered. Comments correctly pointed out that this criteria was not in accord with Section 507(a) of the Act. Section 507(a) establishes a maximum, but no minimum permit fee level to be required by State regulatory authorities. Proposed Section 732.15(a)(3)(ii) required that fee levels be sufficient to recover the approximate costs of review, administration and enforcement of such permits. Additional comments recommended that in order to be consistent with other requirements, permit fee provisions should be related to Part 771, General Requirements for Permits and Applications. The Office has accepted these recommendations and Part 771 now establishes fee requirements as provided in the Act. Specific fee requirements have been removed from final criteria in Section 732.15(b)(2).

12. Proposed Section 732.15(a)(3)(iii) established as criteria for program approval that the State control coal mining incidental to Government financed construction consistent with Part 707 of this Chapter. Several commenters asked whether the criteria should signify "notification'' and not "control'' of coal mining incidental to Government financed construction. They noted that Part 707 of the proposed regulations required that the regulatory authority be notified of coal mining operations incidental to Government financed construction while proposed Section 732.15(a)(3)(iii) required States to control such operations.

The comments were correct with regard to the proposed regulations. However, final Part 707 has been revised to require that any person extracting coal incident to Government-financed highway or other construction maintain certain information on site. The recommendation has therefore not been adopted but final Section 732.15(b)(4) has been revised and the regulatory authority must be able to require that any person extracting coal incident to Government financed construction maintain certain information on site consistent with 30 CFR 707.

13. The Office received many comments dealing with requirements contained in proposed Section 732.15 (a)(3)(vii) and (a)(5)(ii). These two provisions established specific requirements for inspectors of State regulatory authorities. Proposed Section 732.15(a)(3)(vii) stated that in addition to general issuance of orders by the regulatory authority, the State inspectors must have authority to issue orders, including issuance of notice of violations, cessation orders and show cause orders. Proposed Section 732.15 (a)(5)(ii) established that State law and regulations had to provide for the issuance of cease and desist orders by the State regulatory authority and its inspectors.

Most comments objected to the requirement that State inspectors specifically have these powers. Commenters pointed out that Section 521 of the Act vests such powers with the Secretary or his or her authorized representative. Others stated that at least one State had a constitutional restriction against inspectors having the proposed authority. Several commenters also recommended that proposed Section 732.15(a)(5)(ii) be revised to only require issuance of cease and desist orders by the head of the State regulatory authority or his or her authorized representatives.

While the majority of comments objected to the requirements for inspector authority, there were several comments in support of inspectors retaining the authority to issue cease and desist orders on site. However, a commenter also recommended that inspectors not be given authority to modify or terminate notices of violation or cessation orders. The commenter stated that once such orders have been issued, the only recourse should be through administrative review as provided in the Act. {14963}The suggestions to limit the authority of State inspectors have not been accepted by the Office. Section 521(d) of the Act specifically states that as a condition of approval of any State program, the enforcement provisions, at a minimum, must incorporate sanctions no less stringent than those set forth in Section 521 and must contain the same or similar procedural requirements. Section 521(a) (2) and (3) provide that the Secretary or his or her authorized representative T3shall "immediately'' order a cessation of surface mining operations in the case of imminent danger to the health or safety of the public, significant imminent environmental harm, or failure to abate a violation. Issuance of a cessation order at a departmental level is inconsistent with this Section of the Act. The legislative history of the Act clearly establishes that the ability of field inspectors to issue cessation orders in the field is a critical and essential enforcement mechanism and one that is mandatory for each State program. H. Rep. 95 218, 95th Cong., 1st Sess. 129 (1977). The Office believes that properly trained and supervised inspectors are fully capable of making judgments appropriate to issue a cessation order. For further discussion of enforcement responsibilities, refer to Part 843 of these regulations.

The Office has not accepted the recommendation to limit the authority of field inspectors to modify or terminate notices of violation or cessation orders. Authority for this provision is contained in Sections 521(a)(3)(5) and 521(d) of the Act.

In order to clarify State inspector responsibilities, the Office has revised the content of Section 732.15(b) (7) and (8) (formerly Section 732.15(a)(3)(vii)) by stating the specific requirements in their respective Sections of the regulations. This Section now provides general provisions which incorporate the specific requirements of these other Sections. To clearly understand the specific requirements for State inspectors, reference must be made to specific provisions of Subchapter L of the regulations. Final Part 840 establishes State regulatory inspection and enforcement requirements to be no less stringent than Sections 518 and 521 of the Act and consistent with Part 843 of these final regulations. The Preamble to this Part explains that each State program must require issuance of cessation orders immediately after the inspector observes a condition or a practice which causes or can reasonably be expected to cause an imminent danger to health or safety of the public or a significant, imminent environmental harm to land, air or water, or upon the failure of an operator to comply with a notice of violation.

14. Proposed Section 732.15(a)(4) required that the State regulatory authority and other agencies having a role in the State program have and will continue to have sufficient technical and administrative personnel and sufficient funding to implement, administer and enforce the provisions of the program, the requirements of Section 732.15(b) (formerly Section 732.15(a)) and other applicable State and Federal laws. This Section has been renumbered Section 732.15(d) in the final regulations.

700 A number of comments recommended that the phrase ". . . and will continue to have . . .'' be deleted from the criteria contained in this Section. Comments noted that a criterian of this kind would require the Secretary to predict the actions of future State legislatures and administrations. Such a predication would be subjective and of questionable reliability. The Office has accepted the recommendation and the rationale and has deleted the requirement from final Section 732.15(d). A number of commenters objected to the requirement contained in proposed Section 732.15(a)(4) that State programs have sufficient personnel and funding to implement, administer and enforce other applicable Federal laws.

Several commenters stated that they do not have authority to enforce all applicable Federal laws and expressed doubt about receiving such authority from their respective legislatures. One comment added that revised cooperative agreements required affected States to administer reclamation related laws. In response to this comment the Office believes that those Federal laws addressed in the regulations are, by definition, reclamation related, and are therefore applicable. It must be emphasized, however, that in establishing this requirment, the Office does not intend that States must have the capability to enforce all applicable Federal laws. Rather, it is recognized that some Federal laws will only require the State regulatory authorities to be capable of complying with and fulfilling any necessary responsiblities. In either case, the principal reason for including this requirment was and is to ensure that State programs have sufficient technical and administrative personnel and sufficient funding to satisfy the minimum obligations imposed by these applicable laws.

As is explained in further detail to the Preamble of Section 770.12 of the permits regulations, OSM can require that the States effect "coordination'' in the Act's permitting process with requirments imposed upon an applicant under the Clean Air Act, Clean Water Act, Endangered Species Act, Archeological and Historic Preservation Act, and Fish and Wildlife Coordination Act. Ordinarily coordination will only require that the State consult with other agencies directly responsible for enforcing these Federal laws to insure that operations planned under permits will be conducted consistent with requirements imposed by the other Federal Laws. However, in some instances, certain other provisions of the regulations will impose upon State agencies the need to independently administer and enforce regulatory requirements derived, in part, from the Endangered Species Act and Archeological and Historic Preservation Act. See 30 CFR 761.11, 761.12, 776.12, 780.15, 784.20, 786.19(e). As to both Section 770.12 and those Sections of the regulations imposing direct responsibilities upon the State agency, the Office has determined that it has the authority to invoke these requirements. Their necessity is explained in the Preamble to the individual Sections involved. States must therefore obtain the necessary legislative authority needed to implement these requirments.

A few commenters recommended as additional criteria for approval of a State program that the State have sufficient legal capability to go along with the State's technical and administrative capability. A commenter stated that permanent programs without sufficient legal personnel obviously cannot meet the enforcement obligations under the Act and regulations. The Office has accepted this reasoning and Section 732.15(d) now requires sufficient legal capability as a criterion for approval. Final Section 731.14(j) has also been revised to require States to address the projected legal workload in program submissions.

Proposed Section 732.15(a)(4) did not establish any specific requirment for experience or expertise of the State regulatory authority. Several commenters stated that while Section 503(a)(3) of the Act requires the State regulatory authority to have sufficient administrative and technical personnel the regulations do not expound further upon their expertise or experience. One commenter stated that there are stringent requirements concerning technical personnel used by industry to comply with the regulations, and that it would appear absurd that industry incur the expense of employing professional people to prepare permit applications when the work will not be reviewed by persons having proper experience and technical training.

{14964}Others stated that State regulatory authorities should be required to have registered professional engineers on their staffs. The commenters reason that since professional engineers must prepare many technical plans the review of these plans by the regulatory authority should only be performed by similarly qualified personnel.

The Office has not accepted these suggestions to expand the specific requirements for regulatory authority expertise. The inherent differences between State programs preclude establishing more detailed requirements. However, pursuant to Section 732.15 criteria, the Secretary is required to find that the State has sufficient personnel to implement, administer and enforce all provisions of the program. In reviewing program submissions the Office will evaluate program personnel against required program functions to ensure that the requirements of the Act and regulations can be met. This review will include an analysis of the numbers and types of personnel to ensure that the performance standards in Subchapter K can be properly incorporated into permits and that permit applications and approved permits can be properly field checked, inspected and enforced. Many of the performance standards are highly technical in nature. This requires that a State program include sufficient technical personnel to understand the requirements and ensure incorporation of the requirements in all permits. At a minimum the proposed staff should have the capability to deal with the land use, engineering, hydrologic, geologic, agronomic and administrative requirements of the Act and regulations.

The proposed staff should also have the capability to deal with the more specialized areas of a State program such as blasting. In addition Section 521 of the Act requires the regulatory authority to determine steps necessary to abate violations and imminent hazards and to list these steps in any orders or notices that are issued to operators. This requirement means that regulatory authorities should have personnel experienced in mining and reclamation matters who can make these required determinations.

15. Proposed Section 732.15(a)(5), now renumbered as Section 732.15(b), stated that the laws and regulations must be in effect at the time of a complete program submission. The Office received many comments objecting to this requirment of full authority at time of submission. As previously discussed in the beginning of Part 732, this requirement has been revised.

16. Proposed Section 732.15(a)(5)(iv) required that a State provide protection for employees of the State program in accordance with protection afforded Federal employees under Section 704 of the Act. Several commenters stated that this requirement was not justified under the Act, nor specifically required. These suggestions have not been accepted. The Act contains many provisions which clearly establish that State programs are to address all requirements of the Act. Section 503(a) specifically requires that the State program demonstrate that the State has the capability of carrying out the provisions of the Act. The Office interprets this to mean carry out all the provisions of the Act.

700 17. One commenter recommended that State programs include judicial review similar to that required in the Act. This comment has been accepted and final Section 732.15(b)(15) has been revised to require that State programs include judicial review in accordance with Section 526 of the Act. 18. Proposed Section 732.15(a)(5)(v) required that the State law and regulations provide for public participation in the development, revision and enforcement of State program regulations and that the State program be consistent with public participation required in the Act and regulations of this Subchapter.

A commenter stated that citizen's rights granted under Federal law and regulations may not be abridged by State programs and that no State program can be approved which does not provide at least the same level of citizen participation in all phases of the State program as does the Federal statute and regulations. The commenter further noted that the Office seemed to accept this basic principle. However, the commenter stated that in an area as controversial as citizen rights, it is incumbent to spell out in the final regulations the requirements for "citizens rights'' to be certain there is no confusion and that these rights actually end up in the State program. The alternative offered by the commenter is that criteria for approval of a State program regarding public participation in proposed Section 732.15(a)(5)(v) establish as minimum requirements the following: (a) State law must allow the citizen at least as much access to the mine site as allowed under the Federal law.

(b) State law must authorize compensation for citizens for participation in all adjudicatory (in accordance with 43 C.F.R. 4.1284) and non-adjudicatory rulemaking, permit hearing, or other similar proceedings held by the State. The State should also be required to budget adequate monies for this participation.

(c) State law must provide citizens with the right to request inspections and participate in the resulting inspection. State law cannot weaken the rights of citizens under Federal law, as established by Section 521 of the Act including the right to review established by Section 517(h)(1) and (2).

(d) State law must allow fee awards against the State and against permittees in accordance with 43 C.F.R. 4.1284.

(e) The State must establish an administrative review procedure similar to that contained in Section 525 of the Act, 43 C.F.R. 4.2 et seq., and 30 C.F.R. 722. This system must allow for at least the same citizen access to the administrative review process as exists under federal law. For example, there must be administrative procedures for review of civil penalties and not simply access to the State court system as urged by at least one State.

(f) The State must allow citizens as much access to the State courts as the Federal law allows to Federal court in areas such as citizen suits, damage actions, review of enforcement proceedings, rulemakings, permit applications etc.

(g) The State must provide citizens with as much access to information regarding surface mining and reclamation operations and regulatory authority activities as is permitted under Federal law to federal information and documents.

Another commenter says the regulations fail to specifically explain what States must do to ensure the citizen participation specifically provided for in the law. Without minimum criteria for citizens' rights, State programs may fail to give the public the same access to the regulatory process which the Act envisioned. This commenter suggests the new requirements for public involvement in inspection of mine sites, civil penalty assessment, access to information, permitting, bonding and designation of lands unsuitable for mining.

Another commenter says the word "consistent'' fails to clearly require any level of public participation and suggests that no State program be approved which provides for less public notice and participation than is proposed under the regulation for use of Federal lands.

Another commenter says the final permanent regulations should contain provisions establishing a procedure for involving citizens in the drafting of State regulations. Another suggests creation of a citizen's advisory council whose membership shall be drawn from names submitted by conservation, environmental and citizen groups Statewide.

Another commenter wants language added guaranteeing the fullest public participation through public hearings on permit applications and other mechanisms in the permit process and in designation of lands unsuitable for mining. Another commenter says that the Office and the States must get beyond the concept of the public hearing as the appropriate vehicle for citizen input. This commenter suggests establishing a procedure for involving citizens in drafting State programs and requiring program data allowing evaluation of State responses to citizen participation. This commenter also suggests that educational programs be established to inform the public of their rights.

{14965}Another commenter urges more effective public participation mechanisms than are provided in the regulatory proposal and requests that the regulations be expanded to make clear that public participation means more than public notice and hearings. Another commenter requests that citizens be permitted to accompany State inspectors during their visits to the mine sites.

Another commenter states that additional minimum requirements should not be established by Federal regulations for mandatory inclusion in a State regulatory program. This commenter summarizes by saying that States should be allowed to devise their own procedures for hearings so long as they do not violate due process requirements.

Most public comments generally speak to expanding requirements for public involvement in the various Sections of Suchapter C. After careful consideration of each comment, OSM has not accepted the proposals to expand on the public participation requirements. The Office has concluded that Section 732.15(b)(10) (formerly Section 732.15(a)(5)(v)) provides adequate assurance for public participation in the development, revision and enforcement of State regulations and the State program consistent with public participation required in the Act and regulations of this Chapter. This language gives the Office flexibility in working with the States to develop suitable public participation procedures and programs and gives States the flexibility to select methods best suited to their individual conditions and needs.

However, the Office believes that the following ten items are required by the Act and should be included in a State program: 1. Development of regulations pursuant to a State program. 2. Development of the State program.

3. Approval and disapproval of permits.

4. Inspections and enforcement including the citizen's right to request inspections and including the right for citizens to accompany State inspectors onto the mine site.

5. Release of performance bond.

6. Designating areas unsuitable for mining.

7. Administrative and Judicial Review that is in accordance with that required in Sections 525 and 526 of the Act and consistent with the Secretary's regulations.

8. Citizens' suits in accordance with Section 520 of the Act.

9. The State program also must allow citizens as much access to program information and records as is permitted under the Act.

10. The State law must provide for the authorization of the award of costs and expenses in administrative and judicial proceedings as provided under Section 520 (d) and (f) and 525(e) of the Act and 43 CFR Part 4.

700 19. Proposed Section 732.15(b) established that the Director may provide for other criteria necessary to meet the provisions of this Subchapter in order to determine whether a State has the capability to carry out the provisions of the Act and this Subchapter. There were many adverse comments regarding this provision. Commenters argued that unless the regulations specified criteria, the States cannot be certain that additional criteria will not be requested by the Office. Other commenters contended that the ability to establish additional criteria during the review process ". . . denies the State the use of time constraints placed on the Director for completing his review.'' In addition several comments maintain that no such discretionary authority is provided for in Section 503 of the Act which sets forth the basic criteria to be used by the Director in evaluating proposed State Programs. These recommendations and suggestions have been accepted and proposed Section 732.15(b) has been deleted.

SECTION 732.16 Terms and conditions for State programs.

1. This Section provides the Director with authority to establish terms and conditions for the implementation, administration and operation of a State program as necessary. Authority for this Section is contained in Section 201(c) of the Act. Proposed Section 732.16 listed three types of terms and conditions that could be established by the Director including a system for reporting information collected by the State, requiring consultation with the Office on a regular basis and providing the Office with access to books and records. Proposed Section 732.16(b) allowed the Director to modify the terms and conditions of the State program from time to time to reflect changes in the regulations of this Subchapter, the conduct of the program or the coordination with the Office. 2. Several commenters stated that the lack of an established set of terms and conditions in proposed Section 732.16 placed State regulatory authorities in an unfair position subjecting them to any provision which the Director may elect to establish. One commenter stated that any additional information requirements should be explicitly stated in the regulations. In addition, several commenters questioned the statutory authority of the Director to modify terms and conditions of the program after final approval. Another commenter stated that Section 732.16(a) is totally inadequate. That commenter would use this Section to require State programs to be revised to reflect subsequent Federal developments. The Office has chosen to accomplish this function under Section 732.17 which requires States to amend their programs whenever there are changes in the Act, regulations, State law, etc.

3. Another commenter states that modification of terms as provided in proposed Paragraph (b) should be established only if it can be approved by both parties. Another commenter suggests that changes in terms should require public hearings similar to those for adoption of regulations unless they are for minor administrative reporting items. Another commenter suggests modifications only after complying with State program amendment procedural provisions.

The Office has accepted the rationale of the comments and has deleted proposed Paragraph (b) allowing modification of terms and conditions from time to time from final Section 732.16. Following program approval and program implementation, changes in the Secretary's regulations that require changes in the State program will be dealt with through an amendment. See the Preamble for Section 732.17 for further discussions on amendments.

4. Final Section 732.16 combines proposed Sections 732.16(a)(1) and (3). The Office also has deleted the provision concerning consultation with the States. The Office does not believe that there is a need to establish this requirement in a formal regulation. The Office recognizes that consultation with the States is one of the Office's oversight responsibilities and that it is best to keep these consultations on an informal basis.

SECTION 732.17 State program amendments.

1. This Section sets forth the amendment provisions for the State programs. Amendments may be initiated by the State or by the Office. Amendments under this Section are available so that an approved State program may be adjusted to meet changes in the Act or regulations of this Chapter, to meet changes in staffing, budgets and resources of the State regulatory authority and to meet changes in the number or size of State mining operations. Amendments are not intended for use by the Office to address inadequate implementation, administration or enforcement of State programs. Inadequate administration of the State programs will be dealt with according to provisions of Section 733. Authority for this Section is derived from Sections 201(c), 503, 504 and 505 of the Act which authorize the Secretary to administer the programs for controlling surface coal mining and reclamation operations.

{14966}2. Section 732.17(a) defines the term "amendment.'' In the proposed regulations, a State program amendment was a written alteration of the provisions, terms or conditions of the approved State program. Several commenters recommended changing the description of a State program amendment in proposed Section 732.17(a) by deleting the words "provisions, terms and conditions'' from this provision. These words were viewed by the commenters, at a minimum, as unnecessary qualifiers to the "approved State program'' and "improperly restrictive'' at worst. This suggestion has been adopted and final Section 732.17(a) identifies a State program amendment as any alteration of the approved State program whether accomplished on the initiative of the State regulatory authority or the Director.

3. Section 732.17(b) requires the State regulatory authority to notify the Director in writing of any significant events or changes which will affect the implementation, administration or enforcement of the State program. Sections 732.17(b) (1) through (7) identify specific events or changes which require notification.

The Office has made several editorial changes in this Section. Written notification is now required to be made to the Director, not the Regional Director. This change has been made so that the Director is involved in these matters at the earliest stage. Similar revisions have been made in Sections 732.17 (c) and (f). The Office has also deleted all references in Section 732.17(b) to responsibilities of the Office. These responsibilities have been set out in new Section 732.17(d).

Several commenters on Section 732.17(b) stated that the minimum events or changes set out in (b) (1) (7) do not significantly amplify the broad language of Section 732.17(b) and should be deleted. They stated that the selection of "significant changes'' should be determined by the Regional Director and the State regulatory authority. Another commenter suggested that the qualifier "substantial'' be added to the sentence preceeding Sections 732.17(b) (1) through (7). This would ensure that unimportant changes need not be included. Another commenter suggested adding the word "significant'' to Section 732.17(b)(6) so that it provides: "significant changes in funding or budgeting . . .'' This was suggested to ensure exclusion of unimportant item changes. This comment pointed out that the usage of "significant'' only in Section 732.17 (b)(7) implies that Sections 732.17(b) (1 6) include changes that are not limited to significant changes.

Another commenter suggested that Section 732.17(b)(4) be changed by substituting the phrase "job functions'' for the proposed language "staffing'' because numerous staffing changes are likely to occur which may not affect actual job functions. This proposal would then eliminate reporting of insignificant program alterations.

Final Section 732.17(b) has been revised after consideration of the preceding comments. The qualifier "significant'' has been added to proposed criteria for notification in Sections 732.17(b) (4) and (6). The recommendation to delete items (1) through (6) has not been accepted. While this specific criteria may not significantly amplify the broad language of Section 732.17(b), the Office believes that items (1) through (7) provide meaningful guidance to the types of changes which may require an amendment. The Office does not believe that the inclusion of this criteria will improperly restrict the discretion of the Office to determine amendable changes. Lastly, the suggestion to substitute the phrase "job functions'' has not been accepted. The Office has, however, revised this provision to require notification of "significant'' changes in staffing and thus allows OSM to keep track of current staffing levels. The term "job functions'' does not have this same connotation and is therefore considered inadequate.

5. Section 732.17(c) has remained the same except for the editorial change substituting Director for Regional Director. Section 732.17(c) requires the Director to notify the State regulatory authority within 30 days of notification of any significant change or event that will require an amendment.

6. Section 732.17(d) requires the Director to promptly notify a State regulatory authority of all changes in the Act and the Secretary's regulations which will require an amendment to the State program. This Section was added because of the modification in proposed Section 732.17(b). Section 732.17(e) sets out the conditions and events which require program amendments.

7. Several comments proposed deleting language in proposed Sections 732.17(d) (1) and (2) "to eliminate redundancy and improve clarity . . .'' Specifically, they recommended that State program amendments may be required: (1) When as a result of changes in the Act or regulations of this Chapter, the approved State program no longer meets the requirements of the Act or the requirements of this Chapter; . . . and (2) When such conditions or events indicate that the approved State program no longer meets the requirements of the Act or the regulations of this Chapter.

Although not adopting the verbatim language proposed by commenters, the Office has accepted the suggested need for clarification of this Section. Proposed Section 732.17(d)(1) has been revised and final Section 732.17(e)(1) establishes that State program amendments may be required when, as a result of changes in the Act or regulations of this Chapter, the approved State program no longer meets the requirements of the Act or this Chapter. Proposed Section 732.17 (d)(2) has undergone an editorial change and has been more clearly set forth in Sections 732.17(e) (2) and (3) of these final regulations. The final regulations establish that amendments may be required when conditions or events change the implementation, administration or enforcement of the State program (Section 732.17(e)(2)) and when conditions or events indicate that the approved State program no longer meets the requirements of the Act or this Chapter (Section 732.17(e)(3)).

8. Section 732.17(f), formerly Section 732.17(e), provides that if the Director determines a program amendment is needed, the State regulatory authority has 60 days after notification to submit an amendment. The time limit for submission has been changed from 10 days in the proposed regulations to 60 days in these final regulations. The Office received numerous comments objecting to the 10-day time frame. A commenter maintained that the 10 day limit does not allow sufficient time for legislative action. The State would therefore be compelled to adopt the Federal language verbatim, this would effectively undermine the primary responsibilities granted the States under Sections 101(f) and 201(g) of the Act. The Office agrees with the comments received on this Section and has adopted a 60-day deadline for submission of a written amendment. This new timeframe should allow the States sufficient time to draft the appropriate changes.

9. Several commenters recommended that States submit "a written strategy designed to implement such an amendment, thus enabling the States to make the program amendment process responsive to (their) constitutional procedures . . . '' Other commenters suggested that the Office delete a specific submission deadline. This would be replaced by requiring a meeting between the Regional Director and the State within 30 days of notification in order to mutually determine the scope and schedules for deadline submission.

{14967}The final regulations do not adopt these suggestions. The Office feels that an established timeframe is both useful and necessary to ensure that State programs take the necessary measures to meet all the requirements of the Federal Act and regulations as soon as possible. Should the amendment require changes in State laws or regulations, the submitted amendment may contain proposed language and a timetable for expected enactment and inclusion in the State program.

10. Final Section 732.17(f)(1) states that the director will commence proceedings under Part 733 should the State fail to propose an amendment within 60 days from receipt of the notice. Final Section 732.17(f)(2) provides procedures, time schedules and criteria for approval or disapproval of an amendment. The Office is required to give notice and hold a public hearing following opportunity for review and comments by the public. The procedures and criteria for approving or disapproving an amendment will be the same as required for a program submission and includes opportunity for the State to submit a revised amendment should the Director initially disapprove the amendment.

700 The proposed Section 732.17(d) did not distinguish general State program design changes involving staffing, procedures, budgeting and resources from changes in State program authority involving laws and regulations. According to the proposed regulations, any change or potential change necessitated notification with a subsequent determination by the Regional Director as to whether an amendment would be required.

Several commenters found proposed Section 732.17(d) confusing and recommended that the amendment procedures and requirements be more fully explained. In response, the Office has revised this Section to distinguish between program design and program authority changes. The final regulations in Section 732.17(e) retain the determination as to whether amendments will be required for changes to the design of State programs. With regard to changes in State program authority, however, an amendment is always required. This requirement is specifically set out in a new Section 732.17(g).

11. Final Section 732.17(g) requires the State to submit an amendment for proposed changes to State laws or regulations that make up the approved State program. This Section also establishes that no changes to laws or regulations shall take effect for purposes of a State program until approved as an amendment. Authority for this Section is contained in Sections 102(a), 201(c) and 503 of the Act to ensure that a nationwide program is maintained after program approval. This additional Section has been added because the proposed regulations did not provide effective procedures for assuring that the program would not be weakened after its initial implementation. Section 503 of the Act also establishes that a State may not exercise jurisdiction under the Act unless the State program is approved by the Secretary. Thus, any changes to the approved State program should not be enforceable by the State until also approved by the Office as part of the State program.

12. Several comments stated that the amendment process in proposed Section 732.17 should be part of maintaining State programs, not part of the overall approval/disapproval process. A comment suggested relocating "appropriate amendment provisions'' into Section 733.12. The commenter pointed out that the Act provides no specific authority for State program amendments. Thus, significant changes should be addressed by Sections regarding Federal enforcement or withdrawal of programs rather than by Section 732.17, as proposed. The comment added that prompt notification of program changes and submission of proposed amendments to the Regional Director are an administrative burden and that the procedure of outright disapproval and withdrawal is preferred.

The Office has decided not to move the amendment procedure to Section 733. State program amendments are necessary to address actual changes in the approved State program submissions which may affect implementation, administration or enforcement of that program. Part 733 is designed to address the States' actual implementation and administrative efforts. The regulations establish that the amendment procedure in Section 732.17 provides for necessary change to the program itself and not the State's effort to run the program. The program includes statutes, regulations, authority, procedures, systems, personnel and physical resources and funding.

SUBCHAPTER C -- PERMANENT REGULATORY PROGRAMS FOR NON-FEDERAL AND NON-INDIAN LANDS, 30 CFR PART 733 -- MAINTENANCE OF STATE PROGRAMS AND PROCEDURES FOR SUBSTITUTING FEDERAL ENFORCEMENT OF STATE PROGRAMS AND WITHDRAWING APPROVAL OF STATE PROGRAMS This Part describes the maintenance of State programs and criteria and procedures for substituting Federal enforcement of State programs and withdrawing approval of State programs. Authority for this Part is derived from Section 504(a)(3) of the Act which requires the Secretary to implement a Federal program if the State fails to implement, enforce or maintain its approved State program. In addition, Sections 504(b) and 521(b) of the Act require the Secretary to provide enforcement of that part of a State program not being enforced by the State.

SECTION 733.1 Scope.

This Section remains unchanged from proposed regulations.

SECTION 733.4 Responsibilities.

1. Section 733.4(a) has been changed to be consistent with other Sections of the regulations detailing the responsibilities of the Secretary and the Director. Under these final regulations the Director is responsible for evaluating State programs and implementing direct Federal enforcement where the State regulatory authority is not enforcing a State program.

2. Section 733.4(b) now provides that the Secretary is responsible for withdrawing approval of State programs. Under the proposed regulations withdrawal of approval of State programs was made by the Director. For further discussion, see the Preamble for Section 730.4. 3. A new Section 733.4(c) has been added describing the Secretary's responsibility for withdrawing approval of State programs if substituted Federal enforcement will not be an effective remedy.

4. Section 733.11 provides the general requirements for maintaining State programs and remains essentially unchanged.

5. Section 733.12 has been restructured and new procedures and requirements have been added. Proposed Section 733.12(a) has been divided into two paragraphs specifying when the Director must evaluate a State program.

6. Section 733.12(a)(2) has added the requirement that all persons requesting evaluations set forth a concise statement of the facts in their request. To avoid frivolous complaints, the Director must verify these facts prior to making an evaluation decision. This change has been made in response to comments which criticized the proposed evaluation provisions as being cumbersome and obstructive since under the proposed regulations any request could trigger an evaluation. A suggestion for a more formal type of evaluation procedure involving a petition, publication in the Federal Register and formal response has not been accepted, however. Such formal procedures would be premature and burdensome and might jeopardize the ability of the Office to investigate allegations. A part of the comment requesting a 60-day written response has been accepted, however. This change will ensure speedy resolutions of the requests. If the Director is unable to verify the allegations or upon verification has no reason to believe that a program evaluation is necessary, his decision in writing to the requestor will be the final decision by the Department.

{14968}7. Many comments on Section 733.12 focused upon the evaluation responsibilities assigned the Regional Director. One commentor suggested that the Regional Director should not be involved in the decision-making process since he or she might be susceptible to local political pressure. Some commentors felt that the Regional Director might be part of the problem with the State's implementation, administration or enforcement of its program. Suggested alternatives ranged from withdrawing all responsibilities from the Regional Director and having the Secretary or the Director make the final decision to keeping the Regional Director's authority but instituting formal procedures and public hearings when the decision-making process reached the Director. 700 In response to these comments, the Office has revised the responsibilities in Section 733.12. The Director is now responsible for evaluations and the procedures leading up to and including initiation of direct Federal enforcement. These responsibilities may, however, be carried out by the Regional Director under administrative procedures of the Office. The Director will be responsible for assuring that a local or regional bias does not interfere with either evaluations or enforcement proceedings. The Director will also be responsible for initiating Federal enforcement. The Secretary, however, will be responsible for withdrawing approval of a State program after receiving a recommendation from the Director as discussed in the Preamble to Section 730.4.

8. Several commentors suggested that the Director should have the obligation in Section 733.12 not only to identify the parts of the State program which he believes are not being administered effectively but also to identify the evidence or reasons. Without this basis, it is argued, the State regulatory authority cannot evaluate the Director's contention that the program is not being administered effectively. Similarly, another commentor suggested that this Section should specifically limit disapproval or substitution decisions to specific violations.

All charges made by the Office will be adequately documented and supported. This information will be discussed during the informal conferences described in Section 733.12(c) and will be required during the public hearing described in Section 733.12(d). To ensure adequate notification to the State, Section 733.12(b) has retained the requirement that the Director notify the State in writing specifying his reasons for believing why the State program is not being maintained, administered or enforced effectively. The Office believes that this requirement includes identification of evidence. The suggestion that action be linked to specific violations has been rejected, however, since there are many actions other than violations, such as failure to administer a program for the designation of lands unsuitable for mining, which may require Federal action.

9. Several comments recommended that State program evaluations include a provision requiring a minimum number of Federal inspections per site annually. One comment proposed conducting one unannounced Federal inspection per year, not only to check State regulatory performance, but also operator compliance. Another comment suggested a minimum of two Federal inspections per site.

This suggestion has not been accepted for three reasons. First, such a provision is not required by the Act; second, Section 733.12(a) as drafted will not preclude evaluation inspections by the Office, and third, Section 842 of these regulations already establishes provisions and requirements for Federal inspection.

10. Section 733.12(c) formerly Section 733.12(b)(1), has been changed in response to one commenter who stated that the time periods outlined in proposed Section 733.12(b)(1) were too restrictive. Proposed Section 733.12(b) provided that when the notice was given, the Regional Director was to specify the time period for accomplishing the remedial action deemed necessary. The commenter contended that the time period should be reasonably long enough to permit the State to comply. It was recommended that the Section be revised so that the 15- and 30-day time periods for requesting a conference and a hearing not begin until after expiration of the time period specified by the Director for compliance. The commenter stated that most time periods given to accomplish remedial action will be longer than 30 days and, therefore, the proposed regulation provides for hearings before the State has a chance to make the necessary changes. This approach is restrictive and unfair to a State that is attempting in good faith to comply.

In response to this comment, Sections 733.12 (c) and (d), formerly Sections 733.13(b) (1) and (2), have been revised so that, upon request, an informal conference may be held within 15 days and a second informal conference may be held when the time period for remedial action expires. Additionally, the 30-day time limit for a public hearing will not begin until expiration of the time given for remedial action. These new procedures should allow both parties greater flexibility in resolving their problems before resorting to the formal public hearing procedures in Section 733.12(d).

11. Section 733.12(e), formerly Sections 733.12 (c) and (d), describes the options available to the Director upon finding that a State has failed to administer its approved program effectively. The Director shall hold a public hearing under final Section 733.12(d) prior to deciding which remedial action, if any, is appropriate.

One commenter suggested that the Office should provide for limited cross examination or questioning of those testifying at the public hearings. The commentor stated that interested citizens and groups should be provided the opportunity to question and that unless questioning is provided, those testifying are apt to make general self-serving statements that go unchecked. It was suggested that the opportunity for questioning will ensure better quality testimony by all involved. The commenter also advocates that limited cross examination be included in the regulations. It was also suggested that the Office establish detailed standards for conducting public hearings. The commenter advocated quasi-adjudicatory provisions for these hearings. The State, it was noted, has the burden of proving that it has the capacity and the intent to enforce its program and therefore should be allowed to present information on the issue in the manner it chooses subject to the authority of the hearing officer to regulate the hearing. Thus, the State might have officials testify and submit documentary evidence. If the State does provide oral testimony, the hearing officer should be empowered to allow limited questioning by interested parties in those specific situations where the need is demonstrated. The commenter also advocates allowing interested parties to present both oral and documentary evidence on the issues.

The Office has elected not to establish such procedures within the regulations. The policy of the Office for the public hearing under final Section 733.12(d) is that no questioning of those testifying will be allowed but that rebuttal by interested persons will be permitted. The rationale for this policy is explained in the Preamble to Section 732.12(b) regarding public hearings for State program submissions.

{14969}12. Sections 733.12 (e) and (f) have been revised to delineate the responsibilities of the Director and the Secretary regarding implementing Federal enforcement and withdrawing approval of a State program. For a discussion of the comments and these changes, see the Preamble to Section 730.4.

13. The Office received one additional comment on Sections 733.12 (d) and (e). This commenter suggested that separate administrative hearings be developed for each remedial action. The remedial actions, it is argued, vary greatly and that due to the seriousness involved in withdrawing a State program, the Office might be reluctant to schedule a public hearing where this possibility exists. The commentor believes that separate hearings will allow the Office more freedom to apply the less drastic action of initiating Federal enforcement. This proposal was not accepted because implementation of two hearings would be both cumbersome and difficult. Additionally, it would commit the Office to deciding which remedy is appropriate prior to hearing any evidence or testimony. The Office believes the present system allows the Director adequate flexibility to choose the appropriate remedy.

14. Section 733.12 (g) and (h), formerly Section 733.12 (e) and (f), have been modified slightly to reflect the changes discussed under Section 730.4. These Sections now specifically set forth the procedures for either substituting Federal enforcement or withdrawing approval of a State program. Regarding the question of withdrawing approval of a State program, one commentor stated that the Office lacked authority under the Act to take this action.

700 The Office believes, however, that there is ample authority in the Act. Section 504(a)(3) of the Act and Senate Report No. 93 402 clearly indicate that Congress intended that the Secretary ultimately promulgate and implement a Federal program rather than enforce specific areas of a State program.

Section 504(a)(3) requires that a Federal program be implemented no later than June 3, 1980, if a State fails to implement, maintain or enforce its approved State program. The time deadline is viewed as the initial date that either a Federal or State program must be effective, not as a limitation on the authority of the Secretary or the Office to withdraw approval of a State program and replace it with a Federal program.

The final regulations also require the Director to substitute Federal enforcement either before or at the same time he recommends withdrawal of approval to the Secretary. This requirement solves the commenter's problem concerning a gap of authority between withdrawal and implementation of a Federal program.

15. Another commenter stated that the entire concept of partial withdrawal should be deleted because it contemplates concurrent administration of a program. The commentor continues that partial withdrawal allows the Office to pick and choose which portions of a State program it wishes to administer without having to accept responsibility for administering an entire program for a State.

The provision allowing partial withdrawal of a State program has been retained in the final regulations and is considered a necessary response for more serious breakdowns in administration where only a certain part of the program is affected. Authority for this requirement is contained in Sections 201(c), 503, 504 and 521 of the Act.

16. Two commenters suggested that the failure of a State to administer its program effectively will be a matter of high seriousness with the potential for substantial harm to the environment and the public. Thus, the constraints upon a rapid substitution of Federal enforcement should be as few as possible. These commentors recommended adding language to Section 733.12 allowing immediate withdrawal of State program approval when failure in administration results in a serious threat to the environment or public.

This proposal is not accepted since it is outside the authority of the Act. Sections 504(b), 521(a) (1) and (2) and 521(b) of the Act specifically require certain procedural steps to be taken before the Secretary may withdraw approval of a State program. Additionally, the environmental concerns expressed by this comment are addressed adequately by Section 843.11.

17. Several commenters noted that there is no provision in Section 733.12 for judicial review of the Director's or the Secretary's decision to withdraw approval of the State program or to substitute Federal enforcement. The commenters stated that this provision should be added since Section 526(a)(1) of the Act clearly provides for judicial review in a case such as this. This suggestion has not been accepted since Section 521(a)(1) of the Act clearly provides that final decisions of the Department are subject to judicial review. The Office does not believe that there is a need to expand on this review in Section 733.12. SECTION 733.13 Procedures for substituting Federal enforcement of State programs or withdrawing approval of State programs.

1. Section 733.13 remains essentially unchanged. Hearing transcripts, written presentations and comments have been added as sources for evaluating the administration of a State program for purposes of determining whether to substitute direct Federal enforcement of the State program or to withdraw approval of all or part of the program.

2. One commenter questioned the brief and general criteria for substituting Federal enforcement or withdrawing approval established in proposed Section 733.13. The commenter recommended that the regulations contain more detailed specific criteria for invoking each remedial action.

The Office did not accept this proposal since the general criteria established in Section 733.13 meets the purposes of the Act and allows and requires the proper remedial action to be invoked.

SUBCHAPTER C -- PERMANENT REGULATORY PROGRAMS FOR NON-FEDERAL AND NON-INDIAN LANDS, 30 CFR PART 736 -- FEDERAL PROGRAM FOR A STATE Authority: Sections 102, 201, 405, 501, 503, 504, 505, 506, 507, 508, 509, 510, 511, 512, 513, 514, 515, 516, 517, 518, 519, 521, 522, 525 and 705 of Pub. L. 95 87.

The statutory authority and basis and purpose of this Part were explained in the Preamble of the proposed rules at 43 FR 41679 41681 (September 18, 1978), which is incorporated herein by reference. Part 736 sets forth the standards and procedures by which the Office will, if necessary, establish Federal programs under Section 504 of the Act to regulate coal exploration and surface coal mining and reclamation operations on non-Federal and non-Indian lands within a State. It is distinguished from Subchapter D of this Chapter, which sets forth standards and procedures for the regulation of coal mining on Federal lands.

Certain nonsubstantive changes of an editorial nature have been made in this Part for clarity. Also, the locations of certain Sections that appeared in the proposed draft have been changed. Sections 736.4(c) and 736.15(b) are now located in Part 771, "General Requirements for Permits and Applications,'' since they deal more with permits than with a Federal program. Since proposed Section 736.15(b) was transferred to another Part, Section 736.15(a) is now labeled Section 736.15.

Another change occurred in the numbering of Section 736.13. In the proposed draft, Section 736.13 contained Paragraphs (c)(1) (i) and (ii), (c)(2), (c)(3), and (d). In the final rules, Paragraphs (c)(1) (i) and (ii) have been combined into Paragraph (c). Paragraph (c)(2) has been redesignated Section 736.13(d) and proposed Paragraph (d) is now Paragraph (e). These changes were made for editorial reasons to consolidate information.

{14970}Lastly, a new Section 736.12(a)(7) has been added to alert the public concerning opportunities to submit data and comments on the proposed promulgation or revision of a Federal program as specified in Section 736.13(b).

Reference is made in Part 736 to Subchapter M, which deals with the certification and training of blasters. However, Subchapter M is to be republished as a proposed rule before promulgation as final at a later date, and all references within Part 736 to Subchapter M are to that Subchapter when promulgated as final. No technical literature was used in preparing this Part.

General One issue raised in this Part concerns which official should be responsible for promulgating, implementing, revising, and terminating a Federal program. This issue related specifically to Sections 736.2, 736.3, 736.4(a), 736.4(b), 736.11(a)(1), 736.11(a)(1)(ii), 736.11(a)(2), 736.11(a)(3), 736.11(b), 736.11(c), 736.12, 736.13(a), 736.13(c)(3), 736.14(a), 736.14(b), 736.15, 736.17, 736.21(a), 736.21(b), 736.22(a), 736.23(a), 736.23(b), 736.24(a), 736.25(b), 736.25(b)(1), and 736.24(b)(2). The alternatives considered were either the Secretary or the Director. One commenter felt that the Secretary should fulfill these functions, since Section 504 of the Act specified the Secretary.

OSM adopted the alternative of the Director. It is organizationally and administratively logical to delegate this power. Section 201(c) of the Act provides that the Secretary will act through the Office. The Secretary has delegated the responsibility to the Director of the Office while reserving the right to approve State programs. (See Departmental Manual Release, U.S. Department of the Interior, 216 DM 1.1 November 9, 1977.) 700 SECTION 736.11 General procedural requirements.

Five issues were raised concerning Section 736.11(a).

1. One issue is whether the Office should delete the requirement of June 3, 1980, for the promulgation and the implementation of a Federal program.

The alternatives considered were either to require June 3, 1980, as the date for promulgation and implementation or to extend the time period to December 3, 1980. Commenters felt that the deadline should be delayed.

The Office selected the alternative of June 3, 1980, since Section 504(a) of the Act requires the Secretary to promulgate and implement a Federal program for a State no later than 34 months after the date of enactment of the Act, which would be June 3, 1980.

2. Another issue concerning this Section is whether a Federal program should be promulgated within 60 days after a decision under Part 733 to withdraw a State program. The alternatives considered for this issue are either to require promulgation of a Federal program within 60 days after a decision to withdraw a State program or to utilize the longer time period, as proposed in the rules. One commenter proposed that Section 736.11(a)(2) be redrafted to require the Secretary to promulgate a Federal program pursuant to Section 504(a)(3) of the Act if, within 60 days of a decision under Part 733, the State does not have or has not demonstrated the intent and capability to enforce its program. The Office selected the alternative of not requiring a Federal program to be promulgated within 60 days after a decision under Part 733. Whereas a 60-day requirement for promulgation would compel prompt action and prevent delay, the time period may be too short to both promulgate a Federal program and include adequate time for public participation in keeping with Section 102(i) of the Act and the Administrative Procedures Act, 5 USC Section 553.

3. The question has been raised as to whether the Office should establish specific criteria for withdrawing a State program, including a requirement that a Federal program be established after Federal enforcement of a State program has been in effect for a specified period. One commenter suggested that if a State does not take corrective action within a 60-day period after Federal enforcement, a Federal program should be mandated.

The alternatives would be either to set specific criteria for withdrawing State programs or to provide only a general statement concerning State program withdrawal and promulgation of a Federal program, allowing the procedures set forth in Parts 733 and 736 to function on a case-by-case basis.

The Office decided that Part 736 should not provide specific criteria for withdrawing State programs. Some criteria are set forth in Part 733. In addition, specific considerations should be decided on a case-by-case basis, depending on the nature and experience of substituted Federal enforcement. By utilizing the processes in Parts 733 and 736, the Director will be able to initiate action as necessary to withdraw a State program and to promulgate and implement a Federal program.

4. Other comments concerning promulgation of a Federal program related to whether Part 736 should include a Section requiring Federal monitoring of a State program to determine the need for a Federal program. The alternatives were either to include or not to include such a Section. One commenter suggested that the Secretary continuously evaluate the administration of each State's program. Then, when the Secretary has reason to believe that the State has failed to implement, enforce or maintain its approved State program in whole or in part, the Secretary would hold an informal hearing to determine the credibility of the information and subsequently hold a formal hearing if the information is credible. Depending on the results of the formal hearing, the Secretary would decide whether to promulgate and implement a Federal program.

The Office chose not to include this procedure in Part 736. Since State program monitoring is covered in Section 733.11(a), it was not considered necessary to duplicate this in Part 736.

5. Section 736.11(a)(1)(ii) raises the issue of whether the Office should be required to promulgate and implement a Federal program if a State does not submit a complete State program within a certain number of days from the date a program is determined to be incomplete. Two alternatives were considered. One is to require a Federal program if a State does not resubmit a complete program within a specified number of days. The other alternative is to eliminate incompleteness as a criterion for promulgating and implementing a Federal program.

One commenter suggested that a State should be required to resubmit an acceptable State program within 90 days of a notice of incompleteness pursuant to proposed Section 732.11. Another commenter suggested that at least 60 days should be allowed for the resubmittal of a State program after a notice of incompleteness, since the 30-day time period would be less than the 60 days required by Section 504(a)(2) of the Act. Another commenter suggested not requiring the concept of resubmittal of an acceptable State program within 30 days of a notice of incompleteness.

The Office selected the alternative of eliminating incompleteness as a reason for promulgating and implementing a Federal program. If adopted, this provision would have allowed summary action by the Office without adequate public participation or comment. Furthermore, the concept of incompleteness is not necessary nor particularly desirable for the promulgation or implementation of a Federal program. The final rewording of Part 732 allows a State to add to its State program submission until November 15, 1979, and, if necessary, for 60 days after a program application has been initially disapproved. Automatically starting a Federal program while a State is revising its proposed program would be an unnecessary administrative overlap if the State program is approved within the timeframe allowed by Part 732, even if the time period for resubmitting an incomplete State program was extended by 30 to 60 days. A 60- or 90-day time period for resubmitting an incomplete State program moreover, could pose scheduling difficulties in meeting the required deadline of June 3, 1980, for the promulgation and implementation of a Federal program.

{14971}It should be noted that although incompleteness is no longer a criterion for initial disapproval of a State program application, it may be necessary to start the process for promulgating a Federal program as early as January 1980, to assure that a State or Federal program will be in place by June 3, 1980.

SECTION 736.13 Public comment.

Section 736.13(c)(1)(i) raises the issue of whether the procedures for a public hearing for a Federal program should be adjudicatory, "informal-but-adjudicatory,'' or legislative.

The commenter who suggested an "informal-but-adjudicatory'' procedure felt that the Director's decison for promulgating or revising a Federal program for a State requires an adjudicatory, not a legislative, procedure. The commenter defined the procedure as an adjudicatory procedure with testimony from a broadly affected category of persons, as long as the Director decides that the testimony presented at the hearing is relevant to the issues under consideration.

Adjudicatory and "informal-but-adjudicatory'' procedures would be much more cumbersome and not appropriate for the issues relating to Federal program promulgation. Such procedures allow cross-examination, but limit the format as to who may speak and what the speakers may say. The adjudicatory procedure would be impossible in the proposed timeframes and unnecessary due to the broad, generic issues considered in promulgating Federal programs.

700 The Office chose the legislative hearing alternative. Neither the Constitution nor the Administrative Procedures Act requires more than a "legislative'' type hearing. ( Vermont Yankee Nuclear Power v. NRDC, 435 U.S. 519 (1978); U.S.

v. Florida East Coast Railway, 410 U.S. 224 (1973); U.S.

v. Allegheny Ludlum-Steel, 406 U.S. 742 (1972).) Legislative procedures allow for comments from a broadly affected group of persons. All related information may be considered under 5 U.S.C. Section 553, which does not require cross-examination nor the separation of functions among the Department of the Interior staff. Opportunity for written rebuttal is allowed through the submission of comments. This procedure is preferable, as it allows for the type of flexibility necessary for the development of generic rules in the short periods of time that will be available to promulgate a Federal program.

SECTIONS 736.21 General requirements of a Federal program and 736.22 Contents of a Federal program.

One issue concerning Sections 736.21 and 736.22 is whether a new Section should be written to expand upon the interplay between a partial Federal program and the remainder of a State program. The alternatives are either to add a Section or to decide upon the specific interplay between the State and Federal program through the promulgation of a particular partial Federal program. One commenter suggested that a new Section is needed to clarify the interplay including permit issuance, enforcement and petitions for designating land as unsuitable for surface mining.

The Office decided that a new Section was not necessary. Partial Federal programs will probably vary from State to State, depending on the State involved and the reasons for the partial withdrawal of the State program. It is not realistic to determine in these rules what interactions will be necessary in a program whose exact contents will be determined later. Examples of a partial Federal program might be (1) a Federal permit system imposed due to the State's inability to administer permits, (2) the Federal regulation of all surface mining operations in one specific geographic area of a State, (3) the Federal designation of lands as unsuitable for mining, or (4) any combination of permanent program elements for a particular State. Allowing the interplay to be decided through the promulgation of the partial Federal program allows for a customized partial program for the individual State.

SECTION 736.22 Contents of a Federal program.

1. One issue raised in connection with Section 736.22 is whether a Federal program should include the contents required for a State program submission. The alternatives are either to require the same elements or not to require the same elements in a Federal program.

One commenter stated that if the Office proposes the implementation of a Federal program in lieu of a State program, the Federal program should include all the items required of a State when submitting a State program. This suggestion was not accepted by the Office. Requiring the Office to submit the same information required of a State is not a productive alternative, since the Office must be the regulatory authority under the Act if the State cannot be approved or continue as the regulatory authority. Also, much of the State program submission consists of a demonstration that the State has a law, regulations, and systems consistent with the Federal law and these rules.

2. An issue raised by commenters concerning Section 736.22(a)(2) was whether to provide specific guidance concerning Federal statutes which impose duties on the Secretary.

The alternatives are (a) not to cite the Secretary's specific duties imposed by other laws which would need to be followed in a Federal program, (b) to provide a general statement about the laws imposing duties on the Secretary under Federal law, without specifying which laws, and (c) to specify those laws which definitely impose duties on the Secretary, emphasizing those acts, and leave open the idea that there may be other relevant Federal laws.

One commenter felt that the Office was attempting to incorporate the provisions of specific acts into the regulatory program of the Act and, in doing so, would create confusion. Another commenter felt that this Section should be deleted since it included the phrase, "all relevant Federal laws,'' rather than restricting it to those laws which protect society and the environment. Another commenter felt that a Federal program should notify all Federal personnel and permittees of the requirements for compliance with Federal and State statutes which are designed to preserve and protect natural and cultural resources.

The Office selected the third alternative_to specify those laws which definitely impose duties on the Secretary, thus emphasizing those acts, and leave open the idea that there may be other such Federal laws. The Secretary must undertake those duties when promulgating and implementing a Federal program, whether or not the laws are enumerated in the regulations. Consequently, deleting this Section provides neither guidance nor awareness of requirements, as the selected alternative does.

Another commenter questioned whether the Office has legal authority under the Act to incorporate the Federal statutes listed in this Section. This suggestion was not accepted. The Office believes it has such authority as explained in the preamble to 30 CFR 770.12(c).

{14972}3. Section 736.22(b) raised the issue of whether the Office has the authority to designate lands as unsuitable for all or certain types of surface coal mining in a Federal program. One commenter felt that such a designation by the Federal government may be a usurpation of State land use authority and a possible violation of the 10th Amendment. Under Section 504(a) of the Act, the Office has authority for designating lands as unsuitable for all or certain types of surface coal mining one year after implementation of a Federal program.

4. Section 736.22(c) raises the issue of whether the Office should specify in these rules the procedures for coordination with other Federal agencies on the review an issuance of permits.

The alternatives considered were either (1) to specify the coordination process, including which permits need to be issued first and the portions of the permits which will satisfy the Office requirements or (2) to allow the coordination process to be determined when each Federal program is promulgated.

One commenter felt that the Office might not be trying to avoid duplication and should clarify whether it is requiring copies of applications filed with appropriate agencies. Another commenter felt that the rules lack substantive guidance concerning the EPA and DOI interprogram coordination and that a second permit program could be required of owners or operators in the coal industry.

The Office chose the alternative of allowing the coordination process to be determined when each Federal program is promulgated. The processes involved will need to be resolved on a State-by-State and agency-by-agency basis, and any need for the Office to have copies of applications for permits required by other Federal statutes and standards could be considered in the promulgation of the Federal program.

SECTIONS 736.22 Contents of a Federal program and 736.23 Federal program effect on State laws or regulations.

Sections 736.22(a)(3) and 736.23(b) raise the issue of whether a Federal program should be required to adopt the existing State program with revisions necessary only to bring the inadequate provisions of the State program into compliance with provisions of the Act.

700 One alternative considered is to require the adoption of the existing State program including more stringent provisions, with necessary revisions to bring inadequate portions of the State program into compliance with the Act and regulations. The other alternative is to allow the Director to determine which provisions of the State programs are most suited to a Federal program for the State.

Two commenters felt that the Office's function is to enforce only the minimum requirements of the Act and leave additional and more stringent requirements to the State. Two commenters warned of the precedent in which a Federal officer can, at the officer's discretion, supersede a statute of a State. Another commenter felt that the Director should not be arbitrarily required to impose more stringent performance standards than those of the Act. Another commenter felt that a Section should be added to the rules that would require a Federal program to adopt the existing State program, with the only revisions being those necessary to bring inadequate portions of the State program into compliance with the Act and the regulations.

The Office selected the alternative of requiring the adoption of the existing State program, including the more stringent provisions, with the necessary revisions to bring inadequate portions into compliance. The Office will not preempt and supersede more stringent State laws that are consistent with the Act but will incorporate those portions into the Federal program. Section 504(a) of the Act gives the Office the responsibility to consider the nature of the State's terrain, climate, and biological, chemical, and other relevant physical conditions. Section 505(a) requires that, unless inconsistent with the Act and these regulations, State law shall continue in effect. More stringent State land use and environmental controls are not to be construed as inconsistent (Section 505(b)). In requiring the more stringent standards of a State program, the Office would be promulgating and implementing a program more suited to the State, especially considering the fact that the more stringent standards would have been designed relative to that particular State and would have utilized the State's expertise in determining whether specified, more stringent provisions are needed to protect some aspects of its land, air or water resources.

SUBCHAPTER D -- FEDERAL LANDS PROGRAM, 30 CFR PART 740 -- GENERAL REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS ON FEDERAL LANDS

Part 740 sets forth the general definitions and administrative responsibilities for surface coal mining and reclamation operations on Federal lands. The major objective of the Subchapter is to ensure that coal exploration and surface coal mining and reclamation operations, involving Federal lands and Federal coal interests, comply with the spirit and intent of the Act.

Authority for this Part is contained in Sections 102, 201, 512, 523, 701, and 711 of Pub. L. 95 87, 91 Stat. 448, 449, 483, 510, 516, 523, (30 U.S.C. 1202, 1211, 1262, 1273, 1291, 1301): and 41 Stat. 437, as amended (30 U.S.C. 181 et seq.).

SECTION 740.1 Scope and purpose.

A new paragraph Section 740.1(e) has been added governing the requirments for establishing a schedule for compliance with the permanent regulatory program. Proposed Paragraphs (e) and (f) of this Section have been renumbered (f) and (g), respectively.

SECTION 740.2 Objectives.

1. As proposed, Section 740.2, "Objectives,'' states that the objective of Subchapter D is to ensure that coal exploration and surface coal mining and reclamation operations involving Federal coal comply with the requirements of the Act, Subchapter D and all other applicable State and Federal laws. 2. Some commenters have challenged the authority of the Office to include any provisions in its regulations relating to coal exploration. They have objected to inclusion of the term "coal exploration,'' in Section 740.2, and requested deletion of: (1) references to use of the term "exploration plan'' in Section 741.18(a)(2), (2) the provisions delegating responsibility to the Regional Directors for inspection and enforcement of coal exploration operations within the permit area in Section 743.4, and (3) exploration performance standards set forth in Section 744.11.

The basis of the challenge is the contention that the Office has no authority for coal exploration under the Act because Section 512(e) of the Act provides that "coal exploration on Federal lands shall be governed by Section 4 of the Federal Coal Leasing Amendments Act of 1975 (90 Stat. 1085),'' and, therefore, Congress intended that coal exploration continue to be governed by the Federal Coal Leasing Amendments Act and would not be affected by the Surface Mining Act.

The Office has carefully considered the argument presented and has concluded that it does have authority to regulate coal exploration operations which are conducted within the permit area and that the commenters have misconstrued the intent of Congress in enacting Section 512(e) of the Act.

{14973}Section 512 of the Act provides that State and Federal programs must include a requirement that coal exploration operations be conducted in accordance with exploration regulations issued by the regulatory authority. It requires that such regulations include the requirement that persons intending to conduct coal exploration file an advance notice with the regulatory authority and provisions requiring reclamation in accordance with the performance standards in Section 515 of the Act. Without the addition of Section 512(e), coal exploration operations on Federal lands would be governed by the procedure for authorization to conduct coal exploration in Section 512(a).

The legislative history of H.R. 2, the bill which became Public Law 95 87, shows that Parargaph (e) was added by the House Interior Committee on Interior and Insular Affairs (see House Report 95 218, 94th Cong., 1st Sess. p. 66). Although the Committee Report does not state the reason for the addition, the Office believes that the most logical reason is that the Committee realized that by enactment of Section 4 of the Federal Coal Leasing Amendments Act of August 4, 1967, (90 Stat. 1085; 30 U.S.C. 201(b)) the Congress had already authorized the Secretary of the Interior to require that coal exploration on any land subject to the Mineral Leasing Act shall be conducted pursuant to coal exploration licenses and unless Paragraph (e) was added to Section 512 its procedural provisions would be in conflict with the Mineral Leasing Act coal licensing provisions.

The commenter's argument that coal exploration on Federal lands is controlled by the Mineral Leasing Act and not the Surface Mining Act overlooks the important fact that Section 4 of the Coal Leasing Amendments Act specifically provides that coal exploration licenses may not be issued on any lands on which a coal lease has been issued. Thus, Section 4 of the Coal Leasing Amendments Act does not regulate coal exploration operations which take place within the permit area on leased lands. There are no other Federal laws regulating such operations. Consequently, if the commenter's argument is accepted it follows that Congress intended the environmental protection standards of the Act not to apply to coal exploration operations within a permit area. The Office believes this conclusion is unreasonable in light of the findings and statement of purposes in Sections 101 and 102 of the Act.

Accordingly, the Office has taken the position that coal exploration activities on Federal lands which take place as an incidental part of the conduct of mining operations within the permit area are subject to regulation and control by the Office. The regulations have been carefully drafted to recognize that the Director, U.S. Geological Survey, has sole responsibility for supervising coal exploration activities conducted outside the permit area pursuant to coal exploration licenses.

3. Several commenters indicated that the language "involving Federal coal interest, regardless of surface ownership'' in Section 740.2 is without statutory authority and is inconsistent with Section 714 of the Act. They suggest deleting this language.

In reviewing this Section, the Office believes the language is consistent with Section 701 of the Act which defines "Federal lands'' as meaning any land, including mineral interests owned by the United States. The Office also believes the language "regardless of surface ownership'' is consistent with Section 714 of the Act, because this Section, which provides for consultation with surface owners regarding proposals to lease Federal coal deposits, addresses preleasing requirements. That is, before the Secretary may issue a lease, where private surface is involved, the Secretary must first have the surface owners' written consent. Once such consent is obtained and a Federal coal lease is issued, however, all coal exploration and surface coal mining and reclamation operations are subject to the postlease provisions of Section 740.2, regardless of surface ownership. Nevertheless, the Office decided to modify Section 740.2 by deleting the language "coal interests regardless of surface ownership,'' replacing it with the language "lands, as defined in Section 700.5. This revision is editorial in nature, but it provides greater continuity with language in the Act and other parts of the regulations.

700 4. An issue of significant interest in Part 740 involves the definition of Federal lands and the applicability of the regulations in this Subchapter when Federal surface and private minerals are involved. Comments allege that the regulations are insufficiently clear as they relate to the applicability of Parts 740 745 to situations involving Federal surface/private minerals. One commenter indicates that Congress did not intend to include private minerals under Federal surface in the definition "Federal lands.'' As previously indicated, Section 701 of the Act specifically defines Federal lands, making no distinction among various combinations of surface-mineral estate ownership; i.e., whenever the Federal Government owns either the surface, the minerals, or both, it is considered Federal lands. The Office could not find any support for a commenter's allegation that Congress did not intend for regulation of mining operations, involving private coal under Federal surface, under the Federal lands program. Therefore, the Office did not accept the alternative to exclude the combination of Federal surface/private minerals from the definition, because it is contrary to the definition of Federal lands as provided by Congress in Section 701 of the Act.

SECTION 740.4 Responsibilities. This Section sets forth responsibilities relating to the review, approval or disapproval of cooperative agreements, mining plans, permit applications, bonds and insurance and for establishing responsibility for inspection and enforcement of terms and conditions of coal exploration permits issued pursuant to 43 CFR 3507.

1. Section 740.4(d) and (h), have been revised to reflect the separation of mining plan functions from permit application functions. More detailed analysis of this revision is provided under the Preamble discussion of Section 741.12.

A commenter suggested that the provisions of Part 740 be more specifically addressed to cultural resources. Generally, preservation and protection of natural and cultural resources are contained within the provisions of Section 740.2, "Objectives,'' which requires compliance with the Act, this Chapter, and all other applicable State and Federal laws. Further, Section 740.4(d) provides additional protection of cultural and historic resources by requiring the Director to consult with and obtain the consent of the authorized officer of the Federal surface managing agency, with respect to special requirements relating to the protection of non-mineral resources of the affected area; cultural and historic resources are contained within the context of non-mineral resources. The Office does not believe that it is necessary to single-out cultural resources or any other natural resources in the general provisions of Part 740; however, to strengthen compliance requirements for non-mineral resources, Section 740.4(d) has been modified, requiring the Director to assure operator compliance with special requirements relating to the protection of non-mineral resources in affected areas.

Section 740.4(d) sets forth general responsibilities for review and approval or disapproval of permit applications for surface coal mining and reclamation operations on Federal lands.

A commenter suggested that this provision be modified to clarify the requirement that the Secretary follow permit approval procedures as specified in a State-Federal Cooperative Agreement, where such agreement is in effect. The Office considered the revision but elected not to accept this alternative, because in conducting his review, the Secretary must also take into account the requirements of the Mineral Leasing Act of 1920, as amended, the National Environmental Policy Act of 1969, and other Federal laws. Procedures for meeting the requirements of these Acts will not be addressed in a State-Federal Cooperative Agreement. Therefore, requirements of these acts with respect to consultations and concurrence of other agencies which have responsibilities for administering these laws must be included in the Office's regulations.

{14974}2. Sections 740.4(d) and (f) require the consent or concurrence of the authorized officer of the Surface Managing Agency relating to special requirements and bonding. Comments indicated objection to this requirement, stating it is contrary to Sections 201(c)(6) and (c)(12) of the Act. These Sections, allege commenters, require only consultation and cooperation with other agencies.

The Office considered deleting the consent provision but rejected the alternative. Justification for the rejection is embodied in the Preamble to the proposed rules, which indicates that the consent provision for special requirements relating to the protection of natural resources is required by Section 6 of the Federal Coal Leasing Amendments Act of 1975 (30 U.S.C. 207(7)). This Section states in part that "where the land involved is under the surface jurisdiction of another Federal agency, that other agency must consent to the terms of such approval.'' The Office and the Secretary cannot neglect compliance with the requirement of Federal law. Further, the Office believes that the allegation that the consent or concurrence provisions of Paragraphs 740.4(d) and (f) are contrary to Paragraphs 201(c)(6) and (c)(12) is unfounded; paragraph 201(c)(6) addresses consultation requirements with other Federal agencies having expertise in the control and reclamation of surface mining, and Paragraph (c)(12) deals with cooperation with other Federal agencies and State regulatory authorities. Neither provision prohibits the Director from complying with other statutory consent or concurrence requirements, nor do they restrict the Director from establishing internal requirements for consent between the Office and other Federal agencies.

SECTION 740.5 Definitions.

1. One commenter suggested that the definition of "authorized State regulatory authority'' in Section 740.5 should be expanded to recognize State separation of authority over exploration and mining activities; in effect, the regulations should permit recognition of more than one State regulatory authority. This concept was not adopted by the Office.

The intent and purpose of requiring a State to designate the State regulatory authority is to have a single contact point at the State level for the Office. This will help avoid any misunderstanding and confusion among the public, the Office and the State in the administration of the Act and regulations promulgated thereunder. This position is also consistent with Section 701(26) of the Act which defines "State regulatory authority'' as "the department or agency in each State which has primary responsibility at the State level for administering the Act.'' This definition implies that only one department or agency is to have lead responsibility, and it is the position of the Office that each State has the responsibility to identify a single authorized regulatory authority within the State government. This does not preclude the regulatory authority from entering into arrangements with other State agencies for the performance of specific tasks. See also the Preamble discussion of the term "state regulatory authority'' in Section 700.5.

2. Section 740.5 of the proposed rules contained separate definitions for "lease terms and conditions'' and "lease stipulations.'' Several comments questioned the need for the two terms. As suggested by comments, the text of Parts 740 745 was reviewed to ascertain the need for separate definitions. This review indicated that "lease terms and conditions'' and "lease stipulations'' were always used in the context of terms, conditions, and stipulations of a lease. After reviewing the regulations, the Office elected to combine the two definitions.

3. Several commenters objected to language in Section 740.5 which requires the State regulatory authority to enforce Federal laws and regulations. States indicate they have no such authority except for that authorized by the Mineral Leasing Act of 1920, as amended and the Act. The Office considered the alternative of deleting or adding language which would preclude States from enforcing terms, conditions, and stipulations based on Federal law, other than the Mineral Leasing Act and the Act. This alternative, however, was not accepted because adopting it would prohibit the Secretary from fully administering his responsibilities under the Endangered Species Act, the Historic Preservation Act, and other Federal laws. The Director has the option to negotiate, within his authority, the extent to which he will delegate responsibility to a State.

4. Commenters suggested that the reclamation plan provision be excluded from the Section 740.5 definition of "Mining Plan.'' As written, the commenters suggest that aggregation of different functions under a single term will lead to confusion. For this reason, they suggest restricting the term "Mining Plan'' to the commonly understood mining plan reviewed by the U.S. Geological Survey.

As indicated in the Preamble to the proposed rules, the term "Mining Plan,'' as defined by the Office is intended to reflect the fact that both the Mineral Leasing Act of 1920, as amended, and the Act require a reclamation and operation plan to be filed, and that surface coal mining and reclamation may not be conducted unless a mining plan has been approved by the Secretary (30 U.S.C. 207(c) and 30 U.S.C. 1273). Therefore, the term "Mining Plan,'' as defined in Section 740.5, must include the requirements of both the Mineral Leasing Act and the Act. Such data and information is essential to the Secretary's review and approval or disapproval of the Mining Plan and the subsequent issuance of a permit by the Director. For these reasons the Office elected not to accept the commenter's suggestion.

5. One commenter indicated that the definition of "operator'' was ambiguous, suggesting that it be revised to reflect that an operator could involve an "entity, including any independent contractor.'' Review of the regulations revealed that the definition of operator in Section 740.5 is unnecessary, since it is a duplication of that contained in Section 701.5. The term has been deleted from Section 740.5. The commenter's suggested revision is also unnecessary since the term "person,'' as used in the definition of operator in Section 701.5, is defined in Section 700.5, and it includes the alternative language recommended by the commenter.

SUBCHAPTER D -- FEDERAL LANDS PROGRAM, 30 CFR PART 741 -- PERMITS Authority for this Part is contained in Secs. 102, 201, 506, 507, 508, 509, 510, 511, 513, 514, 515, 516, 517, 522, 523, 527, 701 and 711, Pub. L. 95 87, 91 Stat. 448, 449, 473, 474, 478, 479, 480, 483, 484, 485, 486, 495, 498, 507, 510, 513, 516 and 523. (30 U.S.C. 1202, 1211, 1256, 1257, 1258, 1259, 1260, 1261, 1263, 1264, 1265, 1266, 1267, 1272, 1273, 1277, 1291 and 1301); and 41 Stat. 437, as amended (30 U.S.C. 181 et. seq.).

Part 741 provides for application, revision, renewal and cancellation of permits to conduct surface coal mining operations on Federal lands. Its purpose is also to ensure that surface coal mining and reclamation operations on Federal lands are conducted only after the Department has determined that reclamation as required by the Act is feasible.

{14975}Some commenters objected to inclusion of the permit application requirements arguing that much of the information required to be contained in permit applications for mines involving federally-leased coal was duplicative of requirements for obtaining Federal leases. The Office made no changes in the regulations in that regard, for several reasons. First, the Act establishes an independent regulatory scheme for coal mining from that under the Federal Coal Leasing Amendments Act. Under the Act, permit applications must be made available to the public at public offices near the locality of mining. Information merely in Department of Interior files on a Federal coal lease would not meet the requirements of the Act. Second, where a cooperative agreement exists under 30 CFR Part 745, the applicant must make application information available in an organized fashion to the State regulatory authority for scrutiny in the State permitting process. Third, Federal lease decisions do not include much of the information needed for the Act permits. Finally, lease decisions are made a substantial period of time before the permit application process. Thus, lease information may not be sufficiently current for the applicant to bear its burden of proving entitlement to a permit. SECTION 741.1 Scope.

1. Section 741.1 has been restructured. Its provisions are now limited to the requirements for permits to conduct surface coal mining and reclamation operations on Federal lands. A new Section 741.2, "Objectives,'' has been added as a result of restructuring Section 741.1.

SECTION 741.4 Responsibilities.

1. Section 741.4 sets forth the general obligations under which surface coal mining and reclamation operations may be conducted. Commenters suggested adding provisions in this Part requiring the regulatory authority to notify an applicant within 90 days if a permit application to conduct surface coal mining and reclamation operations is complete. Commenters indicate that it is important to know if an application is deemed complete if an applicant is to continue operating under an approved mining plan beyond the time existing operations are to have approved permits under the permanent regulatory program. They further contend that when faced with the possibility of having to develop information for permit applications, time is often of essence to the applicant.

Alternatives to the notification issue, analyzed by the Office, included the 90-day notification period suggested and the alternative to treat the notification process as a procedural item within Office manuals and directives.

The first alternative, although it would provide a fixed time limit, is not reasonable because it would create the possibility that permit applications could be considered approved by default, if for some reason the Office could not respond within the 90-day time limit. For example, delays caused by excessive workload, staffing problems, or preparation or publishing of an environmental impact statement could exceed the 90-day period, thereby causing approval by default. This would place the Secretary in a tenuous situation of possible violation of his responsibility to approve mining plans under the Mineral Leasing Act of 1920, as amended. This alternative was, therefore, determined unacceptable.

In resolving the "notification of completeness'' issue, the Office determined that the provisions of Sections 741.4(a) and 740.4(a) adequately cover the Office's and the Secretary's responsibilities for reviewing and approving or disapproving permit applications and mining plans. In the Office's judgement, any additional specific requirements relating to the "notification of completeness'' issue are procedural and are best handled in the manner of developing Office manuals and directives.

2. Several commenters suggested that States be given sole responsibility for review and approval of permits. They alleged that Section 741.4(b), which requires joint review of the authorized State regulatory authority and the Director perpetuates "duality'' of administration when State-Federal Cooperative Agreements are in effect.

The Office explored three alternatives to the proposed rules, ranging from deletion of the Section 741.4(b) entirely to giving States full authority to approve permits. Neither of these alternatives was determined to be acceptable. Deleting Section 741.4(b) entirely would leave the States and the public uninformed on important procedural items. Giving the States sole authority to approve permits was also unacceptable as it is not a legal alternative because of the interrelationship between permits and mining plans. Section 523(c) of the Act specifically prohibits the Secretary from delegating his responsibility to approve mining plans to the States; permits may not be approved until the Secretary has approved a mining plan. Thus, there is no legal basis for delegating sole responsibility to the State to approve mining plans. I113. Section 741.4(c) sets forth the collective responsibilities of the mining supervisors, the authorized officer of the surface managing agencies, and the Regional Director as they relate to formulation of special requirements to be included in mining and reclamation plans. One commenter suggested that the language of this Section be revised to indicate that the mining supervisor, in consultation with the authorized officer and the Regional Director, should formulate special requirements. Such revision, however, infers that the mining supervisor has the lead responsibility in developing special requirements across a broad area of mining and reclamation operations. This is contrary to the intent of this Section and to the legal authorities, e.g., the Mineral Leasing Act of 1920, as amended and the Act, governing the functional responsibilities for coal leasing, mining, and reclamation operations.

4. Another commenter suggested that Section 741.4(c) should be rewritten to specifically describe the U.S. Geological Survey (USGS) responsibility for review and recommending approval of a mining plan under 30 CFR 211. This alternative was not accepted by the Office. It is contrary to the intent of Section 741.4(c), which is merely specifying that certain authorities, collectively, are responsible for formulating special requirements for a broad area of mining and reclamation operations. Further, the Office believes that USGS responsibilities, as they relate to mining and operations plans, are adequately covered in Section 740.4(h). This Section specifically points out that review of the mining and operations plan section of the mining plan is the responsibility of the USGS.

5. A new paragraph (d) has been added to Section 741.4 to reflect the separation of permit approval functions from the mining plan function. Further analyses of this regulatory change may be found in the Preamble discussion for Section 741.12.

SECTION 741.11 General Obligations.

1. Section 741.11, "General Obligations,'' has been revised and renumbered. Paragraphs (a), (a)(i), (a)(ii), (b) and (c) have been renumbered (c)(1), (c)(2), (b), (d) and (e), respectively. New Paragraphs (a), (1) and (2) have been added.

2. Section 741.11(a) and (a)(i) of the proposed rules (741.11(c)(1) and 741.11(c)(2) as renumbered) describe permit requirements for operators who are conducting or who intend to conduct surface coal mining operations on Federal lands. Numerous commenters objected to the requirement that an application for a permit be filed within two months after the effective date of the final regulations, specifying that this is an unreasonably short time-period. Commenters generally argued that a two month time-frame was totally inadequate for gathering of certain environmental data, because certain permit requirements in Part 779, 780, 782, and 783 would require up to one year or more for data to be collected.

{14976}In resolving the issue of when a Federal lands program should become effective, the Office examined three alternatives. One would require permit filing consistent with the requirements of a State or Federal program once such a program is implemented. The Office rejected this alternative since Section 523(a) explicitly directs the Secretary to promulgate and implement a Federal lands program within one year of enactment of the Act. Delaying the implementation of Federal lands program to coincide with the provisions of Sections 503(a) and 504(a) of the Act is legally unacceptable, as the maximum time limit for implementing the Federal lands program would extend far beyond the 12-month time period intended by Congress.

A second alternative analyzed by the Office would require making the permanent program performance standards of Subchapter K applicable upon the effective date of the regulations, followed by a complete permit application filing within one year of the effective date. This alternative would follow the precedent of the initial program regulations which made initial performance standards applicable to all lands on and after the effective date of the regulations on lands from which the coal had not been removed (30 CFR 710.11(d)). Under the considered alternative, this concept would be extended by requiring compliance with the final performance standards upon effective date of the regulations. At the same time, operators would be given up to 12-months from the effective date of the regulations to collect certain field data required under Parts 779, 780, 782 and 783, which is necessary for filing a complete permit application pursuant to Section 741.13. This alternative, the Office believes, would fulfill the mandate of Congress to promulgate and implement a Federal lands program within the time period specified in Section 523(a) of the Act. It also would provide sufficient lead-time for the operator to gather necessary data for the permit application and subsequent review, approval or disapproval by the Secretary.

Although the second alternative would adequately cover all areas of concern expressed by the commenters, the Office rejected this alternative because it is not sufficiently responsive to the various existing or potential mining operations and situations. Instead, the Office adopted a third alternative which, by adding a new section, requires each operator having an approved mining plan to comply with the permanent performance standards of Subchapter K six months after the effective date of the regulations. However, where performance standards require modification of an approved mining plan, as determined by the regulatory authority, the time for compliance may be extended up to 12 months from the effective date of the final rules. This alternative, the Office believes, provides the flexibility to enforce compliance of specific performance standards on a case-by-case basis while maintaining the rapid implementation schedule intended by Congress in Section 523(a) of the Act. A full permit application will be required two months after a State or Federal program is implemented for the State in which the operation is located. This will provide adequate time for collection and analysis of all required data. It will also assure that the operator is not required to apply for a Federal permit on one schedule, followed within a few months by an application for a permit under a State-Federal cooperative agreement which requires the operator to obtain a State permit. For a discussion of the regulation of existing structures on Federal lands, see the Preamble to 30 CFR 701.11.

3. Section 741.11(a)(ii) of the proposed rules (Section 741.11(b) as renumbered) specified that wherever surface coal mining operations involve both Federal and private lands, the operations on private lands must be conducted in accordance with the requirements of Part 741. The intent of this Paragraph is to afford protection of Federal lands from surface coal mining activities on private lands, where such operations involve both Federal and private ownerships. These provisions were challenged by numerous commenters who contended that the operating requirements imposed by the Office exceeded the authority granted under the Act.

The Office analyzed several alternatives to the proposed rules in Section 741.11(a)(ii). Deleting the requirement entirely was determined unacceptable since publicly owned lands would not be adequately protected. Therefore, this alternative would be in violation of Section 102 (a) through (e) of the Act. A second alternative would be to add a proviso which limited or constrained the applicability of this Section to only those situations where the private lands comprised a relatively small part of the mine plan and when the State concurred with such action. This alternative was also rejected by the Office since it fails to provide protection for operations involving Federal lands where they comprise less than major portion of the mine plan.

A third alternative considered would require a single permit for operations involving both Federal and non-Federal lands. This concept allows an operation to be reviewed as a complete unit. The single permit option, however, would require a Federal program or a State program and a State-Federal Cooperative Agreement under an approved State program to be operational. Since it was concluded that the Secretary has no authority to impose Federal lands program requirements on non-Federal lands this alternative was not acceptable.

The Office explored a fourth alternative to the proposed provisions of Section 741.11(a)(ii). This alternative would authorize surface coal mining operations on Federal lands, provided contiguous operations on intermingled private lands did not adversely impact the adjacent Federal lands. This alternative provides the necessary protection for Federal lands while maintaining the right of the State to administer surface coal mining and reclamation operations on private and State lands. This alternative was rejected, however, since protection of Federal lands would be totally dependent upon State actions on private lands and the degree of cooperation between the Office and the State, particularly in States that do not have State-Federal Cooperative Agreements.

A fifth alternative analyzed by the Office would require, as a condition of departmental approval to begin or continue operations on Federal lands, operations on intermingled non-Federal lands to be conducted in a manner which will not preclude compliance with the performance standards in Subchapter K on Federal lands. While affording the desired protection for Federal lands, this alternative permits States to enforce fully environmental protection standards required by the Act on operations conducted on private lands. This alternative was determined the most acceptable of those analyzed and was, therefore, adopted by the Office. 4. Section 741.11(b)(2) of the proposed rules (Section 741.11(d)(2) as renumbered) specified that an operator could conduct surface coal mining and reclamation activities beyond the date for filing a permit application, as required, in Section 741.11(a), provided the Office has not yet rendered an initial decision with respect to an application. Several commenters allege that the term "initial decision'' is vague and that an operator who has submitted a complete permit application should be permitted to continue operations until the Secretary has rendered a final or appealable decision, if necessary, on a permit application.

The Office has reviewed the provisions of Section 741.11(b)(2). To clarify the meaning of this term, this Section has, therefore, been revised to specify that operations may continue to be conducted until the Director (in lieu of the Secretary) has rendered a final decision with respect to the permit application pursuant to the procedures in Sections 741.21(a) (4) or (5). This revision reflects the changes in approval of mining plan and permit applications in Section 741.12. It also is closely related to the provisions of Section 741.21(5), which provide for applicant appeals of final decisions made by the Director.

SECTION 741.12 Relation of Permit to Mining Plan.

1. Section 741.12(a) of the proposed rules (Section 741.13(a) as renumbered) provides guidance for submitting permit applications, including permit fees, copies required, and application contents. Several commenters objected to the proposed provisions of Section 741.12(a) which stated that, "the amount of the fee shall be determined by a fee table published by the Director.'' They assert that the regulatory authority should have much greater flexibility in establishing filing fees, citing as authority Section 507(a) of the Act which states, ". . . the permit fee may be less than but shall not exceed the actual or anticipated cost of reviewing, administering, and enforcing such permit issued pursuant to a State or Federal program.'' Commenters allegations are further supported by the Senate Committee Report (95 128), page 75, which addresses this issue by stating: "The Committee, however, intends to allow the regulatory authority complete latitude to set the fee at a nominal rate if it so desires. . . .'' The Office concurs that Congress intended to provide the regulatory authority with flexibility in setting permit application fees. Section 741.13(a) has, therefore, been revised to provide that the permit fee shall not exceed the actual or anticipated administrative costs of reviewing, administering and enforcing the application. Further, the amount of the fee may be determined by either using a fee schedule published by the Director, or as determined pursuant to a State-Federal Cooperative Agreement. In adopting this alternative, the Office believes that the regulations are fully responsive to the intent of Congress to provide flexibility in establishing filing fees.

2. Section 741.12(c) of the proposed rules (Section 741.13(c) as renumbered) outlines the content requirements of applications including: the reclamation and operation plans required by 30 CFR 780 and 30 CFR 784; the legal, financial, compliance and related information required by 30 CFR 778 and 30 CFR 782, as appropriate; and the environmental resource data required by 30 CFR 779 or 30 CFR 783, as appropriate. One commenter suggested that Section 741.12(c) require only a permit revision rather than an entire permit application for the initial permit under the Federal lands program. This process, as suggested, would include filing copies of all existing State permits and revisions and requiring only such additional material as required at the time of filing under Office regulations.

In reviewing Sections 506, 507, and 508 of the Act, the Office believes that Congress clearly intended for permit applications pursuant to an approved State program or a Federal program be complete in all respects. The requirement that all operators file a new and complete permit application is found in Section 506(a) which states, "No person shall engage in or carry out on lands within a State any surface coal mining operations unless such person has first obtained a permit issued by such State pursuant to an approved State program or by the Secretary pursuant to a Federal program . . .'' with exception for continued operations pending the initial administrative decision. The Office believes that Section 523(a) of the Act, which requires that the Federal lands program incorporates "all of the requirements of this Act'' requires compliance with Section 506 and that a new permit application must be filed. Accordingly, the commenter's recommendation was not accepted.

3. Section 741.12(c)(1) of the proposed rules specifically stated that a permit application shall be submitted as a part of a mining plan. One commenter alleged that Section 741.12(c)(1) was confusing, since it first specified that a permit application is part of a mining plan, then subsequently indicated in Section 741.12(c)(3) that the mining plan is part of a permit application. The commenter recommended that the permit application functions be separated from the mining plan functions.

The Office has reviewed the permit application requirements of the proposed Section 741.12 rules and agrees with the commenter that this Section was confusing. Consequently, the Office has elected to adopt the commenter's recommendation to separate permit application functions from the operations and reclamation plan function required by the Mineral Leasing Act of 1920, as amended. This revision was accomplished by adding a new Section 741.12 which outlines the relationship between permits and mining plans, as defined by the Office. Section 741.12(c)(1) of the proposed rules (Section 741.13(c)(1) as renumbered) to limit the contents of permit applications to that authorized by the Act. This specifically excludes proposed rules, Section 741.12(c)(1)(iv), which required submission of the operation and reclamation plan (mining and operations plan) required by 30 CFR 211.

To avoid any misunderstanding, the Office has elected to provide the following discussion and analysis of the interdependent relationship of the mining permit and reclamation plan requirements of the Act and the operations and reclamation plan provisions of the Mineral Leasing Act of 1920, as amended.

Section 6 of the Mineral Leasing Act of 1920, as amended requires that an operations and reclamation plan, involving Federal coal leaseholds must be submitted for the Secretary's approval. This plan is prepared in detail and shows how the lessee proposes to meet development, production, resource recovery and protection, diligence, and maximum economic recovery requirements of the Mineral Leasing Act as amended. The Surface Mining Control and Reclamation Act of 1977 does not supersede the Secretary's responsibility to approve or disapprove operations and reclamation plans. Its only impact is to prohibit the Secretary from delegating such responsibility to States. Therefore, the Office must recognize and incorporate the mandates of the Mineral Leasing Act of 1920, as amended, into the Federal lands program required by the Act. A mining permit cannot be issued without an approved operation and reclamation plan.

As previously stated, Section 523(a) of the Act specifies that "the Federal lands program shall, at a minimum, incorporate all of the requirements of this Act. . . .'' Therefore, the Federal lands program must include the permit application requirements of Sections 506 and 507 of the Act and the reclamation plan requirements of Section 508 of the Act. Thus it becomes apparent that surface coal mining and reclamation operations on Federal lands are governed by the interrelated, dependent requirements of two separate laws. That is, a surface coal mining and reclamation permit required by Section 506 of the Act cannot be issued unless the Secretary has approved an operations and reclamation (mining and operations) plan required by the Mineral Leasing Act of 1920, as amended. Conversely, an approved operations and reclamation plan does not constitute authority to commence surface mining and reclamation operations. As an administrative procedure, the Office has elected to combine the requirements of both Acts, as described, into a "mining plan,'' as defined in 30 CFR 740.5.

After further consideration, the Office has elected to adopt administrative procedures for the review and approval of permit applications and mining plans which differ somewhat from the procedures in the proposed rules. Under the revised procedures the permit application and the mining plan will be filed with the appropriate Regional Director, who will review these documents to determine their completeness and compliance with applicable laws and regulations, and conduct the consultations, conferences and public hearings required by Subchapter D of the regulations. After the Regional Director has completed his review and the public hearing is held, the permit application and the mining plan will be forwarded to the Director. The Director will review the permit application and the Secretary will review the mining plan. When the Director determines the permit application is in order he will inform the Secretary that he is prepared to approve a permit. The Director, U.S. Geological Survey, will review the mining and operations plan required by the Mineral Leasing Act of 1920, as amended. The Director will issue a permit upon notification by the Secretary that he has approved the mining plan.

{14978}4. The purpose of Section 741.12(c)(2) of the proposed rules (Section 741.13(c)(2) as renumbered) is to notify applicants, seeking authorization to conduct special categories of mining, of additional information requirements applicable to special categories of mining. Commenters found that the language of this Section was unclear and could be interpreted as a provision to submit information required by 30 CFR 785 for all special categories of mining listed, regardless of applicability.

In reviewing the provisions of Section 741.12(c)(2), the Office concurs that the proposed language is subject to misinterpretation, and has elected to revise this provision to specify that the information required pertains only to the special category or categories of mining proposed by the applicant.

SECTION 741.13 Permit applications.

1. Section 741.13(a)(1)(ii) (Section 741.12(c)(1)(iii) as proposed) requires a reclamation and operation plan meeting the requirements of 30 CFR 780 or 30 CFR 784, as appropriate. Additionally, these provisions also require information relating to the method of mining, the mining sequence, and the proposed production rate for the life of the mine. The intent and purpose of the latter requirement is to provide the Office and the Secretary with data which are essential in identifying and determining the magnitude of environmental impacts and whether to approve or disapprove a permit application or a mining plan.

2. One commenter indicated that "production rate for the life of the mine,'' as used in Section 741.12(c)(1)(iii) of the proposed rules (Section 741.13(c)(1)(iii) as renumbered) is difficult to predict, due to contractual changes, manpower, equipment, operating costs, etc. The commenter suggested that only total proposed production be required.

The Office did not accept the commenter's alternative language because data in Section 741.13(c)(1)(iii) as renumbered, relates to method of mining, the mining sequence, and the proposed production rate for the life of the mine as required by 30 CFR 211. However, since these requirements will be met under the provisions of 30 CFR 211, the language relating to the method of mining, the mining sequence, and the proposed production rate for the life of the mine has been deleted from Section 741.13(c)(1)(iii) to avoid redundancy.

SECTION 741.14 Requirements for special operations.

The title of Section 741.13 (Section 741.14 as renumbered) was changed to read Requirements for special operations in response to commenters' objections to an additional permit for special operations. The change reflects the Office's intent to allow special operations to be included in permit applications. Also, permit application Paragraphs (i), (j) and (k) have been added to include auger mining, coal processing plants and support facilities and in situ coal processing activities under this Section.

SECTION 741.17 Criteria for Permit Approval or Disapproval.

1. Section 741.16 has been revised. Section 741.16(a) is renumbered Section 741.17; a new Paragraph (a) has been added, Section 741.16(a) has been deleted and its provisions included in new Section 741.22. Proposed Paragraphs (b) and (c) of Section 741.16 have been combined and restructured, and now incorporate the proposed requirements by reference under new Paragraph (b). Section 741.16(e) and 741.16(f) have been renumbered Section 741.17(c) and Section 741.17(d), respectively.

2. Section 741.16(e) of the proposed rules (Section 741.17(c) as renumbered) specified that no permit involving operations on Federal lands in a State having an approved State-Federal Cooperative Agreement shall be approved until both the Director and the authorized State regulatory authority have concurred in issuance of the permit. The purpose of this requirement is to provide full protection for Federal lands. I11Several commenters indicated that the language of proposed Section 741.16(e) should be revised to allow State approval of permits on lands within the permit area which are private or State lands. Commenters contend that the Secretary has no authority to control development on private and State lands if a State program has been approved. The commenter suggests that without the recommended revision, the proposed rules language may be inconsistent with some State-Federal Cooperative Agreements.

The Office does not believe that the requirements of Section 741.16(e) prohibit a State from taking action on non-Federal lands, except for the provisions of Section 741.11(b) which requires Federal permittees, desiring to conduct operations on intermingled Federal and non-Federal lands, to conduct such operations in a manner which does not preclude compliance with the performance standards of Subchapter K on Federal lands. Further, the Office believes the language of Section 741.16(e) is consistent with existing practice. The Office, therefore, did not accept the commenters' alternative language.

3. Two commenters objected to the proposed Section 741.16(f) which requires that a permit application not be approved unless it is demonstrated that the applicant has complied with each requirement of all other applicable Federal laws. The commenters contend that there is no statutory justification for imposing this requirement on the applicant and the procedure would be an administrative nightmare. They recommend deleting the paragraph in its entirety.

The intent of Section 741.16(f) was not to impose unreasonable, burdensome requirements on the applicant. Rather, this Section is intended to insure that the applicant show that he has complied with the requirements of applicable Federal laws. Support for the Office's position is contained in Section 510(b) of the Act which require that a permit application be complete and meet all requirements of the Act and the State or Federal program. Further, the Secretary has no legal authority to exempt an operator from compliance with other existing laws and regulations. Section 702(a) of the Act specifically states that it does not supersede, amend, modify, or repeal the requirements of other Federal laws. The commenter's suggested alternative to delete Section 741.16(f) was, therefore, not accepted.

SECTION 741.19 Availability of information.

1. Section 741.18(a)(1) of the proposed rules (Section 741.19(a)(1) as renumbered) is intended to delineate between information which will be open to public inspection and copying and that which will be kept confidential and not made a matter of public record. One commenter suggested that data relating to stripping ratios be specifically identified as not subject to public inspection and copying. The commenter alleges that such data reveals the ultimate economics of the operation and should, therefore, be kept confidential.

{14979}The Office considered the alternative to exempt data relating to stripping ratio from public inspection and copying. The Office believes, however, that the alternative is without statutory authority and would be inconsistent with the provisions of Section 508(a)(12) of the act which explicitly identifies the information to be kept confidential. Therefore, the alternative was not accepted.

2. Section 741.18(a)(2) of the proposed rules (renumbered Section 741.19(a)(2) provide that all exploration or mining and reclamation portions of the application, required under Section 508 of the Act and which are not required to be disclosed by the Freedom of Information Act and 43 CFR 2, shall be handled as confidential material. The intent of this Paragraph is to protect only proprietary data from disclosure. However, as proposed, this provision did not clearly state the intent. Accordingly, the Paragraph was revised to specify that only information which is exempt from disclosure under the Freedom of Information Act shall be held confidential. I11Commenters suggested that "exploration'' be excluded from the provisions of Section 741.19(a)(2), indicating that Part 741 does not apply to exploration. For those reasons discussed in Section 740.2 OSM believes it does have authority to regulate exploration within the permit area, but specific reference to "exploration'' has been deleted from Section 741.19(a)(2) inasmuch as information relating to exploration is required by Section 741.13(c)(1)(iii) to be included in the mining and reclamation plan.

3. Section 741.18(b) of the proposed rules (renumbered Section 741.19(b)) establishes that information in a permit, required to be kept confidential under other provisions of this Section, must be clearly marked as confidential information by the applicant. Data so marked shall be kept separate from other portions of the application. The purpose of this Section is to protect applicant rights as they relate to confidentiality.

One commenter suggested that this Section be revised by adding language which provides that failure to mark appropriate data as "Confidential Information'' by the applicant would be construed as a waiver of confidentiality. Adoption of the commenter's recommended language would preclude an agency from having to determine whether or not a claim of confidentiality is asserted for unmarked information on the permit application. The Office elected to adopt the suggestion since it avoids imposition of an administrative burden on an agency.

Also, commenters suggested revising the language in this Section to clearly indicate that the Office or the regulatory authority is responsible for physically separating pages marked confidential from other portions of the application. This, the commenters allege, will help insure that confidential material will not be inadvertantly released to the public. The Office concurs that information marked "Confidential'' should be physically separated from other portions of the application. It does not agree that the Office should be responsible for separating confidential and non-confidential materials. Section 741.18(b) of the proposed rules (741.19(b) as renumbered) has, therefore, been revised to specify that the applicant is responsible for marking and separating such data from other portions of the application. The Office is responsible for ensuring that "Confidential'' material is kept separate and not made available to the public.

SECTION 741.20 Permit review processing for operations on National Forest System lands.

1. Proposed Section 741.19 (renumbered Section 741.20 and retitled for the final rules) sets forth permit application or permit revision consent requirements for operations on Federal lands within the boundaries of National Forest System Lands. The intent is to disclose fully to the Secretary of Agriculture operations affecting lands within the National Forest System and to receive his concurrence for those operations. 2. One commenter objected to the consent provisions of Section 741.19 as proposed and suggested that the Secretary of Agriculture should be permitted only to comment on a permit application or permit revision. The commenter cites Sections 201(c)(6) and 201(c)(12) of the Act as authority for only requiring consultation and cooperation with other agencies.

The Office elected not to accept the alternative language suggested. Sections 201(c)(12) and 201(c)(6) of the Act do not preclude the Secretary from promulgating regulations requiring other Federal agency consent to issue permits for surface coal mining and reclamation operations where those operations have a direct impact on lands under the jurisdiction of that agency. Further, the Surface Mining Control and Reclamation Act of 1977 does not supersede, amend, modify, or repeal provisions of other Federal laws. Section 207 of the Mineral Leasing Act, as amended, (30 U.S.C. 207(c)) specifically requires ". . . that where the surface of Federal lands to be leased is under the jurisdiction of an agency other than the Department of the Interior that other agency must consent to the approval of the mining plan.'' Finally Section 522(e) of the Surface Mining Control and Reclamation Act prohibits surface coal mining operations on any Federal lands within the boundaries of any national forest unless the Secretary of the Interior finds that there are no significant recreational, timber, economic, or other values which may be incompatible with and surface mining operations and surface operations are incident to an underground coal mine, or where the Secretary of Agriculture determines, with respect to lands which do not have significant forest cover with those national forests west of the 100th meridian, that surface mining is in compliance with the Multiple-Use Sustained-Yield Act of 1960 (16 U.S.C. 528 note), the Federal Coal Leasing Amendments Act of 1975 (30 U.S.C. 181 note), the National Forest Management Act of 1976 (16 U.S.C. 1600 note), and the Surface Mining Act. Obviously, the provision that surface coal mining operations can be permitted on Federal lands in national forests west of the 100th meridian only where the Secretary of Agriculture makes the required determination is a requirement that he must consent to the proposed mining operations.

SECTION 741.21 Review of permit applications.

1. Proposed Section 741.20(a) (renumbered Section 741.21(a)) provides that the Director shall be responsible for reviewing a complete permit application and all other related data. Several commenters indicate that the Director should make such a review within a specified time period. Commenters argue that this would facilitate the review process and would assure timely approval of a permit application. Time periods of 30 days and 60 days were recommended.

In order to comply with the requirements of Section 514(a) of the act, the Office has revised Section 741.21(a)(4)(1) to provide that if an informal conference is held under Section 741.18 the Director shall give his written findings on the permit application to the permit applicant and parties to the conference within 60 days from the date of the conference. Where no informal conference is held Section 514(b) of the act provides that the regulatory authority notify the applicant within "a reasonable time'' of approval or disapproval of a permit application. Given the complexity of the procedures for review of permit applications relating to Federal lands the Office has elected not to provide a fixed time limit at this time.

{14980}Section 741.20(a) (renumbered Section 741.21(a)) has been revised to reflect administrative procedures and responsibilities adopted by the Office for the review of permit applications. For example, responsibility for the initial review of applications, comments on proposed applications and the review of records of informal conferences is assigned to the Regional Director, who will recommend approval or disapproval of applications to the Director. The Office believes this procedure will speed up the review process by assuring to the extent possible that permit applications are complete before they are forwarded for final review by the Director. In addition, this Section is revised to reflect the secretarial decision that the Director is responsible for approval or disapproval of permit applications. Accordingly, the provision in the proposed rules that the Director make a recommendation to the Secretary on approval or disapproval has been deleted.

Paragraph (a)(4) has been revised by adding a provision for notice to be given by the Director of his decision to approve or disapprove a permit application to the applicant, interested parties and the State regulatory authority if there is a State-Federal cooperative agreement. The authority for these requirements is Section 514(a) of the Act. (A discussion of the basis and purpose of these requirements may be found in the Preamble discussion of 30 CFR 785.) 2. As proposed, Part 741 contained no provisions for appeals from decision to approve or disapprove permit applications. The reason for this omission was that the Department had not decided upon procedures for appeals and administrative review. Section 514(c) of the act requires that within 30 days after an applicant is notified of the final decision of the regulatory authority on a permit application the applicant or any person with an interest which is or may be adversely affected may request a hearing on the reasons for the decision. The Act further provides that if the Secretary is the regulatory authority the hearing shall be of record and governed by 5 U.S.C. Section 554. To meet these requirements, Paragraph 741.21(a)(5) has been added to provide that an appeal from the final decision of the Director on a permit application can be taken to the Department's Office of Hearings and Appeals as provided in 30 CFR 787.11. Hearings by the Office of Hearings and Appeals are governed by the rules in 43 CFR 4.

3. Section 741.20(b), of the proposed regulations which provided that the Director require the applicant to file a performance bond before issuance of a permit, has been deleted for the reason that this requirement is now covered by Section 741.22.

4. Proposed Sections 741.20 (c) and (d) (741.21(b) and 741.21(c) as renumbered) have been revised to conform to the comparable provision in 30 CFR Section 786.17 (c) and (d).

5. Proposed Section 741.22 (renumbered Section 741.24) has been revised to reflect the administrative procedural change to transfer responsibility for approval of permits or permit revision to the Director.

Accordingly, Paragraph (b) provides that the Director, upon recommendation of the Regional Director, may require revision or modification or permits, instead of the Secretary. A new Paragraph (d) is added providing that revisions to permits which require a modification of an approved mining plan may not be approved until the Secretary approves the modification of the mining plan.

SECTION 741.24 Review of approved permits and permit revisions.

1. The purpose of Section 741.23 (renumbered Section 741.24) is to establish procedures for the assignment, or sale of rights granted under a permit issued pursuant to Subchapter D. Paragraph (c) of this Section specifies that the Bureau of Land Management and the Geological Survey must give consent prior to the approval or disapproval of an application for transfer, assignment or sale of rights.

2. Comments received stated that it is unreasonable for an operator to have to gain the approval of several agencies for transfer, assignment, or sale of rights granted under a permit, further suggesting that Section 201(c)(12) of the Act charges OSM with the responsibility to avoid duplication with other regulatory agencies when possible. The commenter, therefore, suggests that in transfer, assignment or sale of rights actions, the Regional Director need only obtain the recommendation of the Bureau of Land Management and the Geological Survey in lieu of concurrence, as stated in the regulations.

The reason for the requirement to obtain the consent of the Bureau of Land Management and the Geological Survey is that these agencies have administrative responsibility for assuring compliance with requirements of the Mineral Leasing Act, as amended. For example, the Bureau is responsible for approval of transfers, assignments or subleasing of leasehold rights under regulations in 30 CFR 3506. These regulations include a determination that the transferee is qualified to hold a lease or that he has a sufficient bond. The Geological Survey is reasonable for determining that rents and royalties due have been paid. The Office had no legal authority to make these determinations, nor is it authorized to approve a transfer unless the Bureau and the Geological Survey concur in the transfer. Accordingly, the recommended revision was not accepted. SUBCHAPTER D -- FEDERAL LANDS PROGRAM, 30 CFR PART 742 -- BONDS AND LIABILITY INSURANCE ON FEDERAL LANDS 1. This Part sets forth bonding and liability insurance provisions for surface coal mining operations on Federal lands. Its purpose, is to set forth the procedures and requirements and to ensure compliance with the terms, conditions, and stipulations of a coal lease, license, or permit issued pursuant to the Mineral Leasing Act of 1920, as amended, and the Act, and to inform the public and permit applicants on procedure for setting bond amounts.

Authority for this Part is contained in Secs. 102. 201, 507, 509, 519, 523, and 715, Pub. L. 95 87, 91 Stat. 448, 449, 474, 479, 501, 510, and 525 (30 U.S.C. 1207, 1211, 1257, 1259, 1269, 1273, 1305; and 41 Stat. 437, as amended (30 U.S.C. 181 et seq.).

SECTION 742.4 Responsibilities.

Section 742.4 sets forth the responsibilities of the Director with respect to the form, determination of amount, the release and the forfeiture of performance. No comments were received regarding this section and it is adopted as proposed.

SECTION 742.5 Definitions.

1. Section 742.5 contains definitions of the terms "Federal lease bond'' and "Federal lessee protection bond.'' No comments were received regarding this section. However, in order to avoid any confusion it should be understood that the word "permittee'' as used in the definition of Federal lessee protection bond and in 30 CFR 742.13 means a person to whom a special use permit is issued by the Bureau of Land Management or other surface managing agencies and is not intended to apply to persons issued a permit to conduct surface coal mining and reclamation operations on Federal lands.

2. One commenter suggested adding a new Section 742.6 describing bonding requirements on Federal lands, where a State-Federal cooperative agreement was in effect. The provisions of the new Section, as suggested, would include guidance for establishing the amount of the bond and the payee, release procedures and liability, and forfeiture responsibility and authority. The commenter contends that the new Section will correspond to bond provisions contained in existing State cooperative agreements.

Except for the suggested language which would make a bond payable to both the United States and the State, the Office believes that the commenters alternative language would duplicate provisions contained in Part 745. Section 745.12(a) requires States with cooperative agreements to enforce State program requirements of which the bonding provisions in Parts 800 808 are a part. These bonding requirements are explicit and detailed as they relate to establishing bond amount, release proceedings, forfeiture responsibility and authority. This part of the commenter's alternative was, therefore, not accepted. The Office did, however, elect to add a new Paragraph (b) to Section 741.12, which expands the bond payee to include the State regulatory authority where surface coal mining operations on Federal lands are being administered under a cooperative agreement.

SECTION 742.13 Federal Lessee Protection Bonds.

1. Section 742.13 sets forth the requirements under which an applicant is to present evidence of execution of a Federal lessee protection bond or undertaking. A bond is required when the applicant cannot obtain written consent from the Federal lessee or permittee of the surface estate to enter and commence surface coal mining operations. In lieu of written consent the bond secures payment of any damages to the surface estate for damage to the crops or tangible improvements of the lessee or permittee caused by surface coal mining operations.

2. Several commenters suggested that the Federal performance bond should be reduced by the amount covered by the Federal lessee protection bond. Their rationale is that this would eliminate double coverage, as they believe the Federal lessee protection bond would cover some of the damages covered by the performance bond.

The Office analyzed two alternatives to the proposed language of Section 742.13. The first would require clarification of the requirements of the Federal lessee protection bond and the performance bond to avoid overlap. The Office rejected this alternative, as the requirements of Sections 742.12 and 742.13 clearly indicate that the bonds in question are for separate purposes. Section 715 of the Act also specifies that, the Federal permittee or lessee shall be protected from damages to the surface estate which the operations will cause to the crops or tangible improvements; the amount of the bond must be set by a court if the Federal lessee and the operator cannot agree.

A second alternative would provide reduction of the performance bond by the amount of the Federal lessee protection bond as suggested by the commenters. This alternative was also determined unacceptable. Performance bonds provide protection for compliance with terms, conditions, and stipulations of a lease, license, or permit issued pursuant to the Mineral Leasing Act of 1920, as amended, and the Surface, Mining Control and Reclamation Act of 1977. Federal lessee protection bonds, on the other hand, are for the benefit of a Federal lessee having certain specified authorized uses of the surface of the land subject to mining. As previously indicated, the two bonds in question cover separate values and do not overlap.

SECTION 742.12 Performance bonds.

SECTION 742.15 Form of performance bonds.

SECTION 742.16 Terms and conditions of performance bonds.

Proposed Sections 742.12, 742.15, and 742.16 set forth provisions for performance bonds covering surface coal mining and reclamation operations on Federal lands. These Sections precluded self-bonding on Federal lands to ensure the highest level of protection possible for public resources.

1. Numerous comments were received objecting to the exclusion of self-bonding on Federal lands. Commenters generally argue that prohibition of self-bonding in Sections 742.12, 742.15, and 742.16 will not provide any higher standard of protection of public resources. They further indicate that self-bonding is permitted in other Interior-related programs, e.g., oil and gas operations. Consequently, they believe prohibition of self-bonding for surface coal mining and reclamation operations is discriminatory.

The Office thoroughly examined the alternative to extend self-bonding requirements to operations involving Federal lands. Authority for self-bonding is contained within the framework of Section 509(c) of the Act, provided the regulatory authority chooses to exercise the option to permit self-bonding.

In its review the Office decided that the prohibition of self-bonding could discriminate against certain segments of the coal mining industry. Further, the Office believes that the requirements for self-bonding in 30 CFR 806.11(b) are sufficiently detailed and comprehensive to ensure a high-level of protection for Federal lands. Additionally, the Preamble to the proposed rules specifically invited comments on the bonding issue, and the Office did not receive any comments supporting exclusion of self-bonding on Federal lands. The Office has, therefore, elected to adopt the commenters alternative permitting self-bonding on Federal lands.

2. Section 742.12 has also been restructured to include a new Paragraph (b) indicating that performance bonds must be made payable to both the State and the United States where a State-Federal cooperative agreement is in effect. This protects both the Federal stewardship responsibility and the State regulatory authority responsibility in the event of default.

3. Section 742.15 establishes the form of performance bonds. A new Paragraph (c) has been added to reflect the Office's decision to permit self-bonding under the requirements of 30 CFR 806.11(b). The reader should review the discussion of Part 806 in the Preamble as to the basis for determining self-bonding acceptability.

4. Section 742.16 sets forth terms and conditions of performance bonds, including the duration and area covered by the bond. Paragraph (b) of the proposed rules has been deleted, because this requirement is already covered by Section 742.14. Paragraph (c) of the proposed rules has been renumbered (b), accordingly.

SECTION 742.17 Terms and conditions for liability insurance.

1. Section 742.17 of the proposed rules outlined the terms and conditions for liability insurance for Federal lands. As with the performance bonding requirements of Section 742.12, it was proposed that the self-insurance provisions of 30 CFR 806.14(d) not apply on Federal lands. The intent was to provide the highest level of liability insurance protection for operations involving Federal lands.

Comments concerning the exclusion of self-insurance provisions were similar to those received on the self-bonding issue. Commenters generally expressed concern that the provision to exclude self-insurance on Federal lands would not provide added protection and that it is discriminatory to permit self-insurance on private lands and exclude Federal lands. No comments were received in support of the exclusion.

Based upon the comments received the Office reviewed its position concerning the exclusion of the self-insurance provision on Federal lands. The Office considered two alternatives. The first would be to authorize self-insurance on Federal lands without regard to the position taken by the States. Consideration was given to inequity which would result in situations were intermingled Federal and private lands were included in a Federal permit and the State had elected not to permit self-insurance on private lands. The second alternative would be to authorize self-insurance on Federal lands only in instances where a State has established self-insurance requirements in an approved State program which comply with 30 CFR 806.14(d). Adoption of this alternative would avoid any conflict between State and Federal rules on the matter. Accordingly, the Office elected to adopt this alternative.

SECTION 742.18 Release of bonds.

Section 742.18 establishes requirements for release of bonds on Federal lands. This Section has been modified by including a new Paragraph (c), specifying that the Regional Director must notify and consider the non-Federal surface owners comments prior to releasing a performance bond. Proposed Section 742.18(c) has been renumbered Section 742.18(d). SUBCHAPTER D -- FEDERAL LANDS PROGRAM, 30 CFR PART 743 -- INSPECTIONS, ENFORCEMENT, AND CIVIL PENALTIES-FEDERAL LANDS This Part sets forth responsibilities and procedures for inspection of surface coal mining and reclamation operations and assessment of civil penalties on Federal lands. It also specifies general operator obligations as they relate to right of entry and availability of records and equipment for inspection by the authorized officer and the public.

Authority for this Part is contained in Section 102, 201, 517, 518, 521, 523, and 525 of Pub. L. 95 87, 91 Stat. 448, 449, 498, 499, 504, 510, and 511 (30 U.S.C. 1202, 1211, 1267, 1268, 1271, 1273, and 1275); and 41 Stat. 437, as amended (30 U.S.C. 181 et seq.).

SECTION 743.4(a) Responsibilities.

1. Section 743.4(a) specifically addresses the Regional Directors' responsibility for inspection and enforcement of coal exploration and surface coal mining and reclamation operations on Federal lands within the permit area to ensure compliance with all applicable performance standards and requirements of the approved exploration or mining permit.

2. One commenter suggests this provision is not in accord with Section 512(e) of the Act which states that coal exploration on Federal lands shall be governed by Section 4 of the Federal Coal Leasing Amendments Act of 1975 (90 Stat. 1085). The commenter asserts that under this Section of the Act the Secretary is authorized to issue exploration licenses on unleased Federal coal; exploration licenses are not to be issued on leased Federal coal. Therefore, the commenter believes that the language of Section 743.4(a) is usurping power which Congress did not intend for the Office to have.

The commenter's rationale regarding the Secretary's authority and responsibility under Section 4 of the Federal Coal Leasing Amendment Act of 1975 is correct. However, neither Section 743.4(a) or any provision of subchapter D require a coal exploration license on leased lands, as suggested by the commenter. This Section is intended to bring exploration operations, not covered by other provisions of law, under regulatory control, thereby affording protection against surface disturbance and adverse environmental impacts, as intended by the Act. The commenter's suggestion that this Section be deleted was, therefore, not accepted. Instead, a new Section 740.4(h) has been added to clarify Federal agency responsibilities as they relate to exploration operations on: (1) unleased lands; (2) leased land outside a permit area; and (3) permitted lands.

3. Section 743.4(c) outlines the Mining Supervisor's inspection and enforcement responsibilities as they relate to development, production, and resource recovery, including royalty audits and other non-Field inspections.

One commenter interprets this Section to give the Mining Supervisor the authority to inspect and enforce all terms, conditions and stipulations, including environmental protection standards, of the lease, license, or permit issued pursuant to the Mineral Leasing Act of 1920, as amended, and the Surface Mining Control and Reclamation Act of 1977. The Office has reviewed the provisions of Section 743.4(c) and believes that, as stated, the requirements of this Section clearly limit the Mining Supervisor's area of compliance responsibility to development, production, resource recovery, etc., as required by the Mineral Leasing Act of 1920. Commenter's suggested alternative to add the additional language "except for site specific requirements relating to protection of the environment'' was not accepted.

4. Section 743.4(d) of the proposed rules specified that the authorized officer of the surface managing agency shall inspect leases and permit areas to ensure protection of non-coal Federal resources and the postmining use of affected lands. The intent is to insure that the surface managing agency, with its special expertise, has adequate administrative control and enforcement of provisions relating to non-coal resources over which it has management responsibility. One commenter suggested deleting this entire Paragraph, indicating it perpetuates "duality'' of administration between the Office and other Federal agencies. As proposed, the commenter concludes, the surface managing agency would play nearly an identical role as the Office and the State in the inspection and enforcement of terms, conditions, and stipulations of a lease, license, or permit.

The Office analyzed two alternatives to the proposed rules. Deleting Section 743.4(d) entirely, as suggested by the commenter, was determined unacceptable as it eliminates recognition of the responsibilities of the surface managing agency under laws other than SMCRA. Such action, the Office believes, is also contrary to the Administrative Procedures Act which provides for public disclosure of governmental processes, and procedures.

A second alternative to the proposed rules involves clarification of Section 743.4(d) to indicate that the surface managing agency is responsible for administration and enforcement of laws and regulations dealing with the use and disposal of non-coal resources and materials. This alternative clearly separates the surface managing agency's role from OSM's, thus removing any doubt for management responsibility over non-coal resources. The Office elected to adopt this alternative by revising Section 743.4(d) to indicate that the surface managing agency has the responsibility to ensure compliance and enforcement of other Federal regulations and laws relating to the use and disposal of other non-coal resources and unleased non-coal minerals in the permit area, except those uses authorized under the terms, conditions, and stipulations of the lease, license, or permit pursuant to surface coal mining operations.

SECTION 743.11 General obligations.

1. Section 743.11(a) sets forth "right of entry'' provisions required of the operator. As proposed this Section described right of entry as including the access and means for any authorized Federal employee to inspect mining operations. The intent of these provisions is to implement Section 517(e)(8) which provides that the regulatory authority shall have a right of entry to any surface coal mining and reclamation operation.

2. One commenter suggested that the requirement that the operator provide "access and means,'' to the mine site is unreasonable. The commenter indicates that in circumstances involving early development of mines in remote areas, the provisions of Section 743.11(a) would be construed to require a light plane or helicopter to be on 24-hour standby. The commenter suggests that the regulations be revised to require that the operator be required to provide the use of landing facilities only.

The Office elected to accept the commenter's suggestion and has deleted "means'' inasmuch as Section 517(a)(3) of the Act does not require an operator to provide a means of inspection.

3. Section 743.11(b) establishes operator requirements for making appropriate records and monitoring equipment available to authorized inspection officials. The purpose is to ensure prompt availability of records and monitoring equipment to ensure compliance with all appropriate Federal laws and regulations.

{14983}Comments received suggested that Section 743.11(b) should be modified to specify that only records required by the Act and the regulations promulgated thereto should be subject to the provisions of this section. Commenters do not believe the authorized representative should have access to or copy records not required by the Act or regulations or those records not associated with demonstrating compliance. Additionally, the commenters suggest adding the language, "If any such records which are copies are marked or considered confidential by the operator, the copies will be treated as confidential and not disclosed to the public.'' The Office concurs with the commenters' argument that records which must be made available to the authorized officials be limited to those required under Section 517 of the Act and the regulations. Section 743.11(b) has been revised accordingly.

This Office believes commenters' concerns regarding confidentiality of records is covered by Sections 507(b)(17) and 508 (a)(12) and (b) of the Act which specifically designate information which may or may not be disclosed to the public. These provisions, the Office believes, are adequate to protect the operator from public disclosure of confidential material. The Office, therefore, did not elect to revise Section 743.11(b) to include the suggested additional language relating to restrictions on the release of confidential information.

4. Section 743.11(c) has been revised to indicate that search warrants will not be needed by authorized Federal representatives when conducting inspection and enforcement duties under Paragraph (a) of this Section, or when reviewing/copying records or inspecting monitoring devices under Paragraph (b) of this Section.

SUBCHAPTER D -- FEDERAL LANDS PROGRAM, 30 CFR PART 744 -- PERFORMANCE STANDARDS FOR FEDERAL LANDS Part 744 establishes requirements for compliance with performance standards for exploration and mining and reclamation operations on Federal lands. This includes compliance with performance standards upon completion of operations or abandonment.

Authority for this Part is contained in Sections 102, 201, 508, 512, 515, 516, 517, 519, 523, 701, and 717, of Pub. L. 95 87, 91 Stat. 448, 449, 478, 483, 486, 490, 495, 498, 501, 510, 516, and 526 (30 U.S.C. 1202, 1211, 1258, 1262, 1265, 1266, 1267, 1269, 1273, 1291, 1301, and 1307); and 41 Stat. 437, as amended (30 U.S.C. 181 et seq.).

1. One commenter indicated that the provisions of Part 744 do not explicity specify that the Secretary may require revision of mining plans to meet changing conditions, correct oversites, or implement new statutory requirements. The commenter proposed this section be revised to include a provision authorizing the Mining Supervisor or the Regional Director, as appropriate, to require the operator to revise or supplement an approved plan to correct oversites, or to meet new statutory requirements.

The Office elected not to accept the commenter's proposed revision of Part 744. The Office believes the added provisions suggested by the commenter are adequately covered under Section 741.24, which requires the Regional Director to review issued permits and to make reasonable revision or modification of permit provisions to ensure compliance with the Act and other Federal or State laws.

Sections 744.11(a), (a)(1), (a)(2) and (a)(3) have been renumbered Section 744.11, (a), (b) and (c) respectively.

SECTION 744.11 Performance standards: Exploration. 1. Section 744.11 sets forth requirements for coal exploration activities on Federal lands within a permit area. The purpose is to ensure that exploration operations or related activities which are not subject to regulation under the Mineral Leasing Act of 1920, as amended or 30 CFR 211, are conducted in a manner which is in full compliance with the Surface Mining Control and Reclamation Act of 1977.

2. One commenter objected to the provisions of Section 741.11 in general, indicating that OSM does not have any authority to regulate any type of coal exploration on Federal lands even if exploration occurs within an area which is permitted for surface coal mining. The commenter, therefore, suggests deleting Section 744.11 in its entirely.

For the reasons stated previously in the discussion of Section 740.2 the commenter's suggestion to delete the provisions of Section 744.11 was not accepted.

SECTION 744.12 Performance standards: Mining and reclamation.

1. Section 744.12 sets forth requirements for performance standards for mining and reclamation operations. Paragraph (a) of this Section specifies that all surface coal mining and reclamation operations on Federal lands must comply with the performance standards in Subchapter K of these regulations and any terms and conditions of the lease, license or permit. The intent is to notify the operator of all compliance standard requirements.

2. One commenter suggested adding a paragraph to Section 744.12 specifying that all surface coal mining and reclamation on Federal lands shall be conducted pursuant to the performance standards in 30 CFR 211 and any terms and conditions of the lease, license, or approved permit. This revision would specifically consider the requirements of 30 CFR 211.

In reviewing Section 744.12, the Office concurs that reference to operator requirements to comply with the performance standards of 30 CFR 211 should be noted. Accordingly, Section 744.12(a) is revised to recognize that the operator must also comply with the regulations promulgated under the Mineral Leasing Act, as amended (30 U.S.C. 181 et seq.).

3. Section 744.12(c) sets forth operator and mining supervisor responsibilities when mining operations are being conducted in sensitive areas and when such operations encounter or have the potential for disturbing such areas. The intent of these provisions was to provide early warning and assessment of the consequences should mining activities be permitted to continue in the area.

Comments on Section 744.12(c) indicate that the mining supervisor should be required to notify the operator in writing within 15 calendar days of his decision to allow operators to continue in situations where unsuspected wells or bore holes are encountered. The commenter alleges that under the emergency circumstances of Section 744.12(c), the operator should be entitled to written certification of the mining supervisor's decision within a specified time-period.

The Office did not accept the suggested alternative as it is beyond the purview of these regulations to require the mining supervisor to respond within a fixed number of days. Since issues covered by this section relate primarily to the responsibility of the mining supervisor under 30 CFR 211, the Office has elected to delete Section 744.12(c) in its entirety.

SECTION 744.13 Performance standards: Completion of operations and abandonment.

1. Section 744.13 sets forth operator requirements for completion of operations and abandonment, including provisions for public notification and participation in such actions.

2. One commenter suggested that all reference to the term "approved plan'' in Section 744.13 should be changed to read "approved permit.'' The commenter did not provide any rationale for the proposed change.

The text of Section 744.13 has been revised and now excludes the term "approved plan.'' Deletion is a result of editorial corrections.

{14984}3. As proposed Section 744.13(a) specified the protective actions which an operator must implement upon temporary abandonment of a mining operation. The intent is to afford optimum protection for people and animals against hazards associated with mining and reclamation operations.

Several commenters indicated that language requiring that protective devices be placed around "areas prone to subsidence'' is vague and unnecessarily open-ended. They contend that such areas are difficult to determine, and that the provisions for protecting surface facilities which present a hazard under Section 744.13(a) are adequate to achieve the intent of this Section.

After reviewing Section 744.13(a), editorial corrections have been made which incorporate the abandonment provisions of 30 CFR 816.131 and 817.131 by reference. Thus, the specific requirements of the proposed Section 744.13(a) rules are unnecessary. This revision eliminates all reference to "subsidence'' and the concern expressed by the commenters.

Section 744.13(d) as proposed required the Regional Director to notify a non-Federal surface owner and consider his/her comments before recommending that the appropriate bond liability be terminated. The purpose and intent of this provision is to provide for surface owner participation in bond release proceedings and to ensure satisfactory reclamation or restoration of the surface and facilities thereon.

One commenter indicated that this provision is neither authorized nor needed and should be deleted. The owners of fee surface overlying Federal coal, contends the commenter, are sufficiently protected by Section 714 of SMCRA (30 U.S.C. 1304) and the regulations promulgated thereunder.

Deletion of Section 744.13(d), as suggested by the commenter, was determined unacceptable because it would cause omission of an important requirement of Section 744.13: Completion of Operations and Abandonment. Further, the provisions of Section 714 of the Act relate only to consultation and consent of surface owners to issuance of a Federal coal lease and afford no protection of surface owners' property rights, after a lease has been issued. The Office believes this requirement is reasonable and within the intent of the Act. Instead, the Office elected to revise the text of Section 744.13(d).

SUBCHAPTER D -- FEDERAL LANDS PROGRAM, 30 CFR PART 745 -- STATE-FEDERAL COOPERATIVE AGREEMENTS Part 745 sets forth procedures for the formulation and administration of State-Federal cooperative agreements authorized under Section 523(c) of the Act. This Part also describes the provisions which must be included in an agreement, establishes criteria for approval of agreements, and lists authorities and responsibilities reserved to the Secretary. The objective of this Part is to provide for uniform application of environmental and reclamation standards to surface coal mining operations within a State through the exercise of regulatory authority by the State.

Authority for this Part is contained in Sections 102, 201, 503, 507, 517, 518, 521, and 523 of Pub. L. 95 87, 91 Stat. 448, 449, 470, 474, 498, 499, 504, and 510 (30 U.S.C. 1202, 1211, 1253, 1257, 1267, 1268, 1271, and 1273); and 41 Stat. 437, as amended (30 U.S.C. 181 et seq.).

Sections 745.11(b)(7), 745.11(f)(4), 745.12(c), 745.14 and 745.18 have been deleted. In Section 745.11, Paragraphs (b)(8) and (b)(9) have been renumbered Sections 745.11(b)(7) and (b)(8), respectively. In Section 745.12, Paragraphs (d), (e), and (f) have been redesignated Sections 745.12 (c), (d), and (e). A new Paragraph (f) has been added to Section 745.12. Deletion of Section 745.14 has resulted in renumbering subsequent Sections 745.15 through .17. Deleted Section 745.18 has not been replaced.

1. A number of comments received objected to the promulgation of any regulations under this Part. Commenters suggested that the public would be totally confused by these regulations and that the provisions of Part 745 will be inconsistent with existing cooperative agreements executed under 30 CFR 211. Commenters further specify that the proposed rules are contrary to harmonious relationships with the various affected States, forcing them to accept unreasonable terms. The Office has elected not to accept the suggested deletion of all provisions under Part 745. As stated in the preamble to the proposed rules, failure to promulgate regulations implementing Section 523(c) of the Act would leave the States, particularly those which will become eligible for agreements, and the public completely uninformed about the procedures for entering into cooperative agreements and the terms and conditions of such agreements and the circumstances under which such agreements may be modified or terminated. The Office further believes that publication of these rules is mandated by the Administrative Procedures Act (5 U.S.C. 552) which provides that rules of procedures and substantive rules of general applicability, adopted as authorized by law and statements of general policy or interpretation of general applicability, shall be published in the Federal Register.

In reviewing its decision to publish final regulations governing the execution and administration of cooperative agreements, the Office does not believe that agreements executed under 30 CFR 211 will be inconsistent with the Part 745 regulations. The Office, however, wishes to clarify any confusion or misunderstanding of the relationships between the existing cooperative agreements and the requirements of Part 745 as follows: After the effective date of the regulations in Part 745, pursuant to the requirements of Section 523 of the Act, existing State-Federal cooperative agreements, entered into pursuant to 30 CFR 211.75, must be revised to permit States to administer and enforce the permanent program performance standard requirements of 30 CFR 816 828, as appropriate. Upon approval of a State program, such existing cooperative agreements may be amended pursuant to 30 CFR 745.12. Failure to amend an existing cooperative agreement to bring it into full compliance with the permanent regulatory program will cause termination of the agreement in accordance with Article IX, Paragraph (c) of the respective existing cooperative agreements. The revised cooperative agreements, when adopted in final form, will appear at 30 CFR 746 rather than at 30 CFR Part 211.

SECTION 745.2 Objectives.

Section 745.2 sets forth the objectives of this Part, providing for State regulation of surface coal mining operations on Federal lands where State-Federal cooperative agreements are in effect. Several commenters suggested that this Section be expanded to specifically point out that one of the major objectives of cooperative agreements under Section 523(c) of the Act is to eliminate "duality'' of administration and enforcement of surface coal mining and reclamation operations. They contend that such objective is also consistent with Article I, Purpose, of existing cooperative agreements.

I11The Office believes that total elimination of "duality'' of administration is not feasible, because the Secretary is prohibited by law from delegating certain responsibilities to a State. Section 523(c) of the Act, for example, specifically prohibits the Secretary from delegating to States responsibility for approving mining plans or for designating certain Federal lands unsuitable for mining. Nevertheless, the Office concurs with the commenters' alternative language to the extent that duality of administration should be eliminated wherever authorized under a State-Federal cooperative agreement. The Office has, therefore, adopted the commenters' suggestion to revise Section 745.2, to specifically indicate that State regulation of surface coal mining and reclamation operations will be accomplished under cooperative agreements, the basic purpose of which is to reduce duality of administration and enforcement. This revision, the Office believes, is responsive to the commenters and is consistent with the language of existing cooperative agreements.

SECTION 745.4 Responsibilities.

1. Section 745.4 sets forth responsibilities and procedures for entering into, approving, revising, terminating, administering, and enforcing cooperative agreements. As proposed, the rules were silent with respect to the State regulatory authority's responsibilities for administering, maintaining, and enforcing State-Federal cooperative agreements. This Section has, therefore, been revised, by adding a Paragraph (d), to recognize the responsibility of the State regulatory authority.

SECTION 745.11 Application and agreement.

1. Section 745.11 establishes procedures and information requirements for submitting applications for cooperative agreements. One commenter recommended that a new provision should be added prohibiting the Secretary from entering into a cooperative agreement until he has obtained the written concurrence of the Administrator of the Environmental Protection Agency (EPA). The commenter suggests this change would be merely an extension of Section 503(b)(2) of the Act which requires such action for approval of a State program.

The Office has elected not to accept the commenter's suggested revision to provide for EPA concurrence on certain environmental provisions prior to the Secretary's approval of a cooperative agreement application, because such a requirement would be redundant. The provision for EPA concurrence, as stated by the commenter, is required pursuant to Section 503(b)(2) of the Act for State program approval. Since cooperative agreements cannot be executed until after a State program is approved it therefore follows that administration and enforcement under a State-Federal cooperative agreement must be conducted in full accord with the necessary requirements for a State program.

2. The intent of Section 745.11(a) is to authorize the Governor of any State, having an approved State program, to request that the Secretary enter into a State-Federal cooperative agreement. Such authorization is restricted to the Governor to ensure that the highest-ranking official in the State is fully informed of a State's intentions to accept administration and enforcement of surface coal mining operations on Federal lands.

Comments suggest that authorization to request the Secretary to enter into a cooperative agreement be expanded to include the State regulatory authority. One commenter indicates that in his State, existing State law does not permit the Governor to exercise jurisdictional responsibility over surface coal mining operations. Authorizing the State regulatory authority to enter into agreements would provide the necessary flexibility to meet individual state needs.

The Office did not adopt the alternative language for the reason that Section 745.11(a) only requires the Governor to submit the request. Execution of the agreement may remain the responsibility of the State regulatory authority. 3. Section 745.11(b), requires that a request to enter into a cooperative agreement include various data. The intent of this data requirement is to assist the Office in determining if the State regulatory authority has conflicting responsibilities which could impair its ability to carry out the administrative and enforcement requirements of a State-Federal cooperative agreement.

Some comments received allege that the requirements of Section 745.11(b) are too burdensome. They contend that information submitted to OSM under the State program is sufficient and additional data requirements of Section 745.11(b) are unnecessary.

One commenter suggested that all references to branches of government not concerned with mining activities should be deleted from the provisions of Section 745.11(b)(2). The commenter indicates that OSM should not be concerned with non-mining related government entities.

Other comments received on the proposed Section 745.11(b)(3) indicate that the Office should not be concerned with data relating to the location and area of non-Federal lands that will not interfere with mining on Federal lands. One commenter recommends restating the provisions of Section 745.11(b)(3) to include information relating only to non-Federal lands adjoining Federal lands.

Another commenter suggested that Section 745.11(b)(4) be revised to exclude the requirement for data relating to the disciplines and salaries of State regulatory authority personnel. The commenter sees no reason to disclose such information which pries into State affairs and in no way is associated with mining activities.

Section 523(c) of the Act requires that the Secretary determine in writing that a State has the necessary personnel and funding to fully implement a cooperative agreement. Generally, information submitted with the State program is of sufficient detail to permit such determination. The Office believes, however, that the data required in Section 745.11 is necessary to properly evaluate a State's capability to administer a cooperative agreement. Nevertheless, the Office has reviewed all the requirements of Section 745.11(b) and has determined that only Section 745.11(b)(7), which requires a description of office space, vehicles, laboratory and testing facilities and associated costs, is unreasonably burdensome. This requirement has, therefore, been deleted from the final rules.

The Office has also reviewed the requirements of Sections 745.11(b)(2) and 745.11(b)(3) and has determined that deletion of these requirements, as suggested, would affect the Office's capability to determine the ability of a State regulatory authority to administer and enforce a State-Federal cooperative agreement. The Office believes that it is necessary to know the entire range of functional responsibilities under the jurisdiction of the State regulatory authority, including staffing requirements, to determine if the State regulatory authority can efficiently and effectively assume the additional workload of administering and enforcing surface coal mining and reclamation operations on Federal lands. The Office, therefore, elected not to adopt the commenter's suggestion.

The Office concurs with the comment that Section 745.11(b)(4) should be revised to exclude requirements for submission of data relating to staff disciplines and salaries. Deletion of this requirement will not impair the Office's ability to determine State costs of administering a cooperative agreement and for evaluating and taking action on grant requests incident thereto. Section 745.11(b)(4) has been amended accordingly.

4. Section 745.11(b)(9) of the proposed rules (745.11(b)(8), as renumbered) specified that the Attorney General of the State must certify that the State regulatory authority has the necessary legal and administrative powers to fully administer a cooperative agreement. The purpose of this requirement is to ensure the Office and the Secretary that State administration and enforcement of surface coal mining operations on Federal lands will not be impaired or jeopardized by conflicting State law, regulation, or policy provisions.

Several comments received expressed concern that a State Attorney General can only interpret State laws and regulations and cannot certify policy provisions over which he has no control; rather, policy certification should be the responsibility of the State regulatory authority.

{14986}In reviewing the provisions of proposed Section 745.11(b)(9), the Office determined that the purpose and intent of this rule, i.e., to limit Attorney General certification requirements to State laws, regulations and other legal areas within the purview of the Attorney General's responsibility, was not clearly stated. The Office has, therefore, elected to revise the requirements of this section by specifically limiting the certification requirement to "State laws, regulations, or legal constraints.'' To provide additional flexibility at the State level, the Office also has expanded certification authority to include the chief legal officer of the State regulatory authority, where such a position exists. This additional flexibility allows State agencies which are independent State regulatory agencies to rely upon their own legal counsels.

5. Section 745.11(d) sets forth public hearing requirements for State-Federal cooperative agreements. It provides that such hearings may be combined with similar hearings for the State program submission under 30 CFR 732. The intent is to eliminate, to the extent practical, duplication of hearings, and to reduce administrative costs.

Several commenters objected to the consolidation of public meetings under Section 745.11(d). While acknowledging that such a procedure might streamline the process and reduce costs, they contend that such practice may confuse the public. They believe that misunderstandings would arise with respect to statements on one proposal, thought to apply to another, e.g., comments on the State program applying to the cooperative agreement. The commenters, therefore, believe that the approval process for State programs and cooperative agreements should be clearly separated.

The Office agrees with the commenters that one public hearing, dealing with both the State program and the cooperative agreement, may have some potential for confusing the public; however, such procedures may also be beneficial by permitting the public an opportunity to better understand the relationships between the two. The Office believes that the positive attributes of combining the public hearings, wherever possible, will provide for greater public understanding of State programs and their relationship to State-Federal cooperative agreements. For this reason, the Office elected not to adopt the commenters' recommendation that separate public hearings relating to cooperative agreements be required. 6. Section 745.11(e) provides for consultation with various Department of Interior agencies and other surface managing agencies prior to the expiration of the public comment period on requests for State-Federal cooperative agreement. The purpose of this requirement is to ensure that all Federal agencies having direct interest in surface coal mining and reclamation operations, are fully aware of the contents of the proposed cooperative agreement, and they have been afforded an opportunity for comment.

One commenter suggested that the Environmental Protection Agency (EPA) be included in the "list'' of agencies that must be consulted under the provisions of Section 745.11(e). The commenter believes that the EPA, with its statutory responsibilities under the Federal Water Pollution Control Act and the Clean Air Act, should be consulted along with other agencies and sees no reason to limit the list to surface managing agencies when the Act is concerned with environmental impacts on air and water as well.

In setting forth the requirements of Section 745.11(e), the Office intended to identify only those agencies which have immediate, direct relationships to surface coal mining and reclamation operations on Federal lands. Consultation with the Fish and Wildlife Service is required by Section 7 of the Endangered Species Amendments Act of 1973 as amended (16 U.S.C. 1531 1543) and the Department regulations in 50 CFR Part 42 (43 FR 874, January 4, 1978) which requires Federal agencies to consult with the Service whenever it determines its activities or programs may affect species or their habitat which are designated as endangered.

The Office believes that adding EPA to the required list would set a precedent, requiring the listing of all Federal agencies having even a remote interest in surface coal mining and reclamation activities. Rather, it is intended that other Federal and non-Federal agencies provide input during the public hearing and comment period, as provided in Section 745.11(c). EPA, in particular, is also consulted in the State program approval process in accordance with Section 732.13(b)(1). For these reasons, the Office did not accept the recommendation to include EPA in the list of agencies to be consulted under the provisions of Section 745.11(e).

7. As previously indicated, numerous comments objected to the promulgation of any regulations in Part 745. Commenters acknowledged, however, that if regulations dealing with State-Federal cooperative agreements are published, Section 745.12 should be revised to include all the provisions of Sections 745.13 through 745.18. Commenters contend that such revisions would eliminate redundancy and unnecessary regulations. According to the commenters, the proposed changes also would provide the Office and the States with greater flexibility to make cooperative agreements responsive to the individual State needs. The following discussion on Sections 745.13 through 745.18 pertains to the commenters suggested revision of Section 745.12 in general.

Section 745.13 describes those authorities which the Secretary cannot delegate to any State. As discussed in the Preamble to the proposed rules such delegation is prohibited by Section 523(c) of the Act, the Mineral Leasing Act and court decisions on the National Environmental Policy Act.

Comments on this Section recommended deletion of Section 745.13, since they believe "reservation of authority'' is adequately covered under Section 745.12(b). The Office did not accept this recommendation, since the authorities set forth in Section 745.13 are non-delegable and cannot be subjected to negotiation in the process of formulating a cooperative agreement.

8. Section 745.14 of the proposed rules provided that the State regulatory authority be responsible for enforcement of all applicable rules and regulations under the terms of a cooperative agreement. The Office concurs with the commenters' suggestion to incorporate these provisions in Section 745.12, because Section 745.14 is basically repetitive, its provisions generally contained within the framework of Section 745.12(a). The Office has, therefore, adopted the commenters' alternative to delete Section 745.14. Correspondingly, Section 745.12(a) has been modified slightly to indicate that the State regulatory authority is obligated to both enforce and inspect for compliance with performance standards required under the State's approved program.

9. Section 745.15 of the proposed rules (Section 745.14 as renumbered) specifies the conditions for amending cooperative agreements. All amendments are to be adopted by rulemaking.

The Office did not accept the commenters' suggestion to delete this Paragraph. Although some conditions for amending cooperative agreements are adequately covered by Section 745.12(c), the Office believes that the requirement to adopt amendments through the rulemaking process is not appropriate for inclusion as a term in the cooperative agreement which is the alternative location for this requirement. Further, analysis of Section 745.12(c) indicates that its provisions are more specifically covered by Sections 745.15 through 745.17; thus, the Office has elected to delete Section 745.12(c). I1110. Sections 745.16 and 745.17 of the proposed rules (Sections 745.15 and 745.16 as renumbered) contain specific requirements for terminating or reinstating cooperative agreements. Such requirements, the Office believes, should not be couched in the framework of the general terms set forth in Section 745.12, as suggested by several commenters. For this reason, the Office did not accept the commenters' alternative to delete these requirements and incorporate them into Section 745.12(c).

{14987}11. Section 745.18 of the proposed rules set forth the procedures to be followed by the State regulatory authority in the administration of cooperative agreements. These requirements have been deleted in their entirety, because they are redundant or have been incorporated into the provisions of Section 745.12. For further analysis of these revisions, the reader is referred to the Preamble discussion for Section 745.12(a) and (b).

12. Section 745.12(d) of the proposed rules (745.12(c) as renumbered) provided for regular reports by the State regulatory authority to the Regional Director. Such reporting is intended to keep the Regional Director informed of State administration and enforcement of surface coal mining and reclamation operations on Federal lands. One commenter suggested that this provision should be much more specific. He pointed out that OSM monitoring of State compliance will be largely contingent on the availability of data on State enforcement practices, and that while State regulatory authorities will be required by Section 840.14 to supply such information there must be separate identification of data relating to Federal lands. Only in this manner, the commenter contends, can OSM use its limited fiscal and manpower resources effectively and efficiently in administering the Act. No specific text was provided by the commenter. The Office has analyzed this recommendation and has concluded that given the requirement in 30 CFR 840.14 that the State regulatory authority shall make available to the Director and the Regional Director copies of all documents relating to permits and inspection and enforcement actions, there is no justifiable basis for including a duplicative requirement in this Part. Moreover, considering the variations in State programs from State to State, the preferable procedure is to include specific reporting formats and data presentation requirements in each individual cooperative agreement. For these reasons, the Office elected not to accept the commenter's suggestions.

13. Section 745.12(f) of the proposed rules (Section 745.12(e) as renumbered) required that cooperative agreements contain terms for cooperation among the State regulatory authority and the various involved Federal agencies to be included in the cooperative agreement. The purpose of such terms is to identify responsibilities and to establish lines of communication between the State regulatory authority and the Federal agencies having direct resource management responsibilities or regulatory control over surface coal mining operations.

One commenter suggests that the provisions of Section 745.12(f) of the proposed rules imply a settling of differences among Interior agencies within the framework of a cooperative agreement. The commenter contends that States should not be subject to such Federal government jurisdictional problems. The commenter further indicates that the provisions of Section 745.12(f) of the proposed rules conflict with at least one existing cooperative agreement, which provides that OSM is to act as a contact point with the State. For these reasons the commenter recommends deleting this provision.

The Office analyzed two alternatives to the proposed rules in Section 745.12(f). Deleting the requirement entirely, as suggested by the commenter, is unacceptable. Although OSM will serve as the principal contact point for the State, there will always be a need for some contact between the States and other Federal agencies on mining-related problems. The Office believes that such needs must be set out in the cooperative agreement to identify jurisdictional responsibilities, areas of special expertise, and to establish lines of communication.

A second alternative examined by the Office would be to make a minor language revision in Section 745.12(f) to provide for "coordination'' among the various agencies in lieu of "cooperation'' as originally stated. This option, the Office believes, permits retention of an important requirement that cooperative agreements establish clearly identified lines of communication between the State regulatory authority and the various Federal agencies. At the same time, the Office believes that this change is responsive to the commenter's concern "that the State-Federal cooperative agreement will be used as an instrument for settling Federal agency differences.'' This alternative was, therefore, determined most acceptable. Section 745.12(f) of the proposed rules (Section 745.12(e) as renumbered) has been revised accordingly. SECTION 745.13 Authority Reserved by the Secretary.

1. Section 745.13 describes various authorities reserved to the Secretary. The purpose is to inform the States and the public of functional responsibilities which the Secretary cannot delegate to the States. One commenter recommends that this Section be amended to allow States the authority to enforce Federal and State statutes designed to protect cultural resources. The commenter contends that this Section fails to recognize a State's interest in the cultural resources and information located within the boundaries of the State.

The Office believes that amending Section 745.13, as suggested by the commenter, is inappropriate. Section 745.13 describes authorities reserved to the Secretary and is, therefore, not the appropriate place to delegate enforcement authority to the States. Further, the Office believes that State regulatory authority for enforcing provisions relating to cultural resources, although not specifically stated, is adequately covered under Section 745.12, which requires that agreements contain terms obligating the State regulatory authority to enforce the requirements of approved State programs. State involvement in the protection of cultural resources is also authorized under the Historic Preservation Act of 1966 which permits States to prepare comprehensive Statewide historic surveys and plans for preservation, acquisition, and development of National Register properties. Under 36 CFR 800, Interior agencies are required to consult with the State Historic Preservation Officer, prior to implementing any Federal action. For these reasons, the Office elected not to accept the commenter's suggested revision of Section 745.13.

2. One commenter recommends deleting Paragraphs (b), (c), (i), and (k) of Section 745.13. This same commenter proposed adding a new Paragraph (i) which would not preclude the Secretary from joint preparation of environmental assessments or development of land use plans. The commenter contends that the proposed rules (b) and (c) of this Section preclude preparation of joint environmental assessments and land use planning mechanisms in place in the States. The commenter further asserts that there is no statutory authority for Paragraph (i), which reserves authority for approval or significant modification of mining plans on Federal lands to the Secretary. Similarly, the commenter contends that there is no authority for the provisions of Paragraph (k), concerning approval of postmining land use for Federal lands. This latter provision, states the commenter, "ignores the right of a State to regulate its end-use (of) private surface or impose stricter laws.'' This provision, according to the commenter, thus appears to preclude enforcement of a more stringent State's statute, and would be beyond the intent of Congress.

{14988}The Office does not believe that the provisions of Section 745.13(b) and (c) preclude the Secretary from jointly preparing environmental assessments and land use plans with the States or other Federal agencies. Where such actions involve Federal minerals on lands under the jurisdiction of the Department of the Interior, however, the Secretary must assume full responsibility for ensuring compliance with Section 102(2)(c) of the National Environmental Policy Act of 1969, Section 202 of the Federal Land Policy and Management Act of 1976, and other Federal laws related to environmental assessment or land use planning functions under the jurisdiction of the Department of Interior. The Office has, therefore, elected not to accept the commenter's suggested revision. Instead, the Office has made a minor modification to paragraph (c) to explicitly indicate that the Secretary only retains authority for development of land use plans for Federal lands.

Contrary to the comment that there is no statutory authority for the Secretary to approve significant modifications to approved mining plans as provided in Section 745.13(i), Section 523(c) of the Act specifies that the Secretary cannot delegate authority to approve mining plans. The Office believes that Congress' intent to prohibit such delegation also extends to significant modifications of mining plans. The Office believes that significant modifications to mining plans could cause impacts of great or greater magnitude than those of the original plan. The Office believes that the Congress did not intend to overlook such possibilities when setting forth the purposes of the Act in Section 102. Paragraphs (a) through (f) of Section 102 specifically provide for protection of society and the environment against adverse effects of surface coal mining operations. The Office, has, therefore, elected to retain the provisions of Section 745.13(i).

Finally, the Office does not believe that the provisions of Section 745.13(k) ignore the right of a State to regulate its end use of private surface or preclude the imposition of more stringent State statutes. The provisions of this paragraph only apply to Federal lands. Where such interest involve only Federal minerals, end use of land surface must be in accord with State land use policies and procedures as required by the Federal Coal Leasing Amendments Act. Further, Section 505(a) and (b) of the Act provide for the application and enforcement of existing, more stringent State laws. Nothing in Section 745.13(k) of the proposed rules should be construed to conflict with such authority. For these reasons, the Office has elected not to adopt the commenter's alternative to delete this and other paragraphs of this Section.

SECTION 745.15 Termination.

1. Section 745.16(b) of the proposed rules (745.15(a) as renumbered) sets forth provisions for terminating State-Federal cooperative agreements by the Secretary. The purpose is to afford the affected State and the interested public an opportunity for involvement and input into the termination proceedings.

2. Commenters allege that the proposed rules do not provide adequate opportunity for public involvement in the termination proceedings. This, the commenters believe, is contrary to the intent of the Act, which emphasizes citizen participation. They contend this Section should be expanded to ensure public involvement in termination actions.

Review of the proposed rules and Section 523(c) of the Act indicate that both are silent regarding public participation in negotiating or terminating State-Federal cooperative agreements. Article IX of the existing cooperative agreements, however, provides detailed and comprehensive procedures for public participation in termination proceedings. These and subsequent State-Federal cooperative agreements will be approved through the rulemaking process which will afford all interested individuals an opportunity to review and comment on the Article IX requirements. The Office, therefore, has elected not to duplicate such requirements in the final rules. Instead, in order to provide a measure of consistency with the public involvement opportunities for entering into cooperative agreements, the Office has elected to modify Section 745.15(b) of the final rules to incorporate, by reference, the opportunity for a public hearing and comment period required in accordance with Article IX of the existing State-Federal cooperative agreements. 3. Section 745.16(b)(2) of the proposed rules (745.15(b)(2) as renumbered) specifies that the Secretary may terminate a cooperative agreement if the State regulatory authority has failed to comply with the assurances given by the State. One commenter suggested that the term "assurances'' implies or could infer important agreements made in secret. The commenter further contends that any assurance which is important enough to require termination should be incorporated into the cooperative agreement and be subject to public scrutiny.

The "assurances'' referred to in Section 745.16(b)(2) of the proposed rules are a series of affirmations contained in the various Articles of the cooperative agreements. These agreements will be approved through the rulemaking process, permitting public review and comment on the included affirmations. The Office, by use of the term "assurances,'' did not intend to conceal important information or agreement terms. However, to avoid misunderstanding the Office has elected to substitute the term "undertakings'' for "assurances.'' SECTION 745.18 State Actions Under Agreements.

1. Section 745.18 of the proposed rules established procedures to be followed by the State regulatory authority in the administration of State-Federal cooperative agreements. The intent was to notify the States and the public of requirements relating to application fees, copies required, and civil penalties.

2. Several commenters indicated that the provisions of Section 745.18(a)(1) of the proposed rules do not permit flexibility in setting permit fees. Similar concerns were expressed for these same provisions in Section 741.11(b)(2), as discussed in the preamble to Part 741.

Other comments on proposed Section 745.18 contend that a State should be allowed to retain permit fees without a corresponding reduction in the Federal grant for administration of a cooperative agreement. One commenter suggests that collected fees should be forwarded to OSM to eliminate any requirement to adjust the amount of the Federal grant.

A final comment on Section 745.18 of the proposed rules recommends the number of copies of permit applications required under Section 745.18(b) be reduced. The commenter suggested that requiring seven (7) copies of each application be submitted to the Regional Director is unreasonable and will result in burdensome paperwork. The commenter recommends that States be relieved of the paperwork and cost burden by requiring only one copy of the permit application.

The Office has reviewed all the provisions of proposed Section 745.18 and has determined that the requirements of this Section duplicate or can be incorporated into the provisions of Sections 741.12, Permit Applications, or 743.13(c), Civil Penalties. Permit fees, for example, are discussed in Section 741.12(a) Similarly, the number of copies of permit applications required is considered in Paragraph (b) of this same section.

Also, commenters' concerns regarding flexibility in establishing filing fees have been considered and incorporated in the review and revision of Section 741.12(a). For further discussion, the reader's attention is referred to the discussion on permit fees, under Section 741.12(a) of the Part 741 preamble.

{14989}Finally, regarding comments on the proposed Section 745.18 rules concerning disposition and handling of permit fees, the Office considered three alternatives to the proposed rules. The first would allow States to either retain the fee or forward it to the Secretary. This alternative would differ from the proposed rules by adding a provision to allow States to forward collected fees to the Secretary. It would not materially alter the procedure for accounting for fees through reporting procedures of Section 745.18(a)(2). It would also provide the opportunity for States to avoid having to adjust the amount of eligibility for a grant under Section 705 (c) of the Act.

A second alternative would permit States to retain the fee without the obligation to reduce the amount of the Federal grant. This option would reduce the reporting burden on the States. It would, however, result in double compensation to the States because funding would be available from both fees and Federal grants. This alternative was, therefore, determined unacceptable.

A third alternative considered would require deleting Section 745.18(a) and adding a new Paragraph (f) to Section 745.12, requiring that the amount of fee, procedures for collection, and reporting permit application fees for Federal lands be set forth in the cooperative agreement. Adoption of this alternative would also allow the flexibility to deal with fee accounting on a State by State basis to meet individual needs. For these reasons and those discussed previously, the Office has elected to adopt this alternative. Section 745.12, Terms, has been revised accordingly.

3. Finally, comments suggesting a reduction in the number of copies of a permit application under proposed Section 745.18(b) were not adopted by the Office. Under an agreement, the State will have the authority to set its own requirements relating to copies of permit applications. Further, the requirement for seven (7) copies for the Regional Director applies only to surface coal mining and reclamation operations on Federal lands and not to all lands, as inferred by one commenter. This number of copies is essential to provide sufficient review copies for the public and the various Federal offices agencies having jurisdictional responsibilities over the lands, resources, and activities involved in the operation.

For these reasons, the Office elected not to accept the commenters' suggestion to reduce copy requirements. As previously indicated, however, proposed Section 745.18(b) has been eliminated, since its requirements are redundant with the provisions of Section 741.12(b).

SUBCHAPTER F -- AREAS UNSUITABLE FOR MINING Section 522 of the Act establishes a procedure to designate areas unsuitable for all or certain types of coal mining, thereby enabling the State and Federal governments to respond to conflicts which often arise between coal mining and other uses of the land. Additionally, it provides procedures for implementing Congressional designations under Section 522(e). This Subchapter implements the provisions of Section 522(a)(1) for establishing a State planning process, of Section 522(a)(2) for mandatory designations when reclamation is infeasible, Section 522(a)(3) for discretionary designations according to the criteria in Section 522(a)(3) (A) (D), 522(a)(4) for required elements of a State process, Section 522(a)(5) for coordinated implementation, Section 522(a)(6) for exemptions, Section 522(c) for the petition process, Section 522(d) for economic, environmental and resource impact statements, and Section 522(e) for Congressionally imposed limitations and prohibitions on mining. It also implements the petition process on Federal lands and the designation process for a Federal program within a State.

Lands covered by the petition process are all private and State-owned lands within a State and all Federal lands as defined in the Act. Additionally, for Federal lands, the Act provides for a Federal coal lands review which is a review process for unsuitability for Federal lands in addition to the petition process. Regulations concerning the Federal coal lands review procedures and unsuitability criteria are not included here. The Bureau of Land Management is responsible for implementation of the Federal coal lands review on BLM lands. See example regulations in Draft Environmental Statement, Federal Coal Management Program, USDI, BLM December 15, 1978, pp. A 29 to A 32; see also 43 FR 57662, Dec. 8, 1978. Indian lands are not covered by these regulations. The petition process, the Federal coal lands review and the Congressional designations, except where specifically exempt, all apply to the surface effects of underground mining as well as surface mining.

Under the procedures for designation, citizens can petition the regulatory authority to designate certain areas unsuitable for all or certain types of surface or underground coal mining. Once the regulatory authority designates an area unsuitable for mining, permits cannot be issued for that area. Additionally, there are procedures for citizens to petition the regulatory authority to terminate a designation of unsuitability for mining. Once a petition to terminate a designation is granted, the regulatory authority may then issue permits for that area.

The regulatory authority must consider petitions which are received after a permit application has been filed. Once a permit has been issued, however, the regulatory authority cannot revoke a permit if a petitioner seeks to designate a permitted area.

The regulatory authority is required to respond to two types of petitions. If a petition alleges that reclamation is not technologically and economically feasible under the standards of the Act, these regulations or the laws and regulations pursuant to an approved State or Federal program, and the regulatory authority agrees, the regulatory authority is then required to designate an area unsuitable for all or certain types of surface coal mining operations. If a petition seeks to designate certain fragile, historic, renewable resource or natural hazard lands unsuitable for all or certain types of surface coal mining operations, the regulatory authority has discretion to designate an area unsuitable if it finds that surface mining operations would: Be incompatible with existing State or local land use plans or programs; or cause significant damage to important cultural, scientific, and esthetic values and natural systems; or result in a substantial loss or reduction of long range food or fiber productivity; or substantially endanger life and property in natural hazard areas, including areas subject to frequent flooding or unstable geology.

Unlike the permit application process, the designation process is to be applied on a natural area basis, rather than a specific mine or site-by-site basis. Congress determined that the area-by-area approach would benefit the coal industry because the industry can learn, in advance of permit application, those areas which are not open to mining or certain mining methods. Report of the House Committee on Interior and Insular Affairs, Surface Mining Control and Reclamation Act of 1977, H.R. 95 218, p. 95.

The regulations of this Subchapter are divided as follows: 1. Part 760 explains the general requirements for State programs, Federal programs within States, the petition process and areas where the Act prohibits or limits surface coal mining operations under certain conditions. Authority for this Part is found in Sections 102, 201, 501(b), 503, 504, 505, 510, 517(f), 522 and 523 of the Act.

2. Part 761 establishes procedures for determining whether a proposed surface coal mining operation is prohibited or limited by the requirements of Section 522(e) of the Act. It also contains definitions and procedures to be used in determining whether a proposed surface coal mining operation is exempt from these prohibitions or limitations. Authority for this Part is found in Sections 102, 201, 501(b), 503, 504, 510, 512, 513, 514, 522 and 701 of the Act.

{14990}3. Part 762 contains the criteria for determining whether an area on either non-Indian, non-Federal or Federal lands is unsuitable for all or certain types of surface mining operations. Authority for this Part is found in Sections 102, 201, 501(b), 503, 504, 510, 512 and 522 of the Act. 4. Part 764 sets forth the minimum requirements for a State petition process to designate areas unsuitable for all or certain types of surface coal mining operations or to terminate such designations. Authority for this Part is found in Sections 102, 201, 503, 510 and 522 of the Act.

5. Part 765 provides the minimum requirements of a Federal program for a State to designate areas unsuitable for all or certain types of surface coal mining operations. Authority for this Part is found in Sections 102, 201, 501, 503, 504, 510, 512, 514, 517 and 522 of the Act.

6. Part 769 contains the process for petitioning to designate Federal lands unsuitable for all or certain types of surface mining operations and to terminate such designations. Authority for this Part is found in Sections 102, 201, 510, 517, 522 and 523 of the Act.

Below, section by section, the comments received by OSM concerning Subchapter F are summarized and answered. Some sections are not mentioned because no significant comments were received on them. Some changes are not reflected in the discussion of the comments; these are typographical, editorial and grammatical corrections which are not intended to change the meaning of the regulations, only to correct or clarify them. The comments are organized in numerical order by section number, with the comments covering an entire section mentioned at the beginning of each section.

SUBCHAPTER F -- AREAS UNSUITABLE FOR MINING, 30 CFR PART 760 -- GENERAL CITE: 44 Fed. Reg. 14902 DATE: March 13, 1979 AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Permanent Program Final Preamble -- Final Rule SUMMARY: [See March 13, 1979 Introduction to the Permanent Regulatory Program Preamble.] EFFECTIVE DATE: [See March 13, 1979 Introduction to the Permanent Regulatory Program Preamble.] SUPPLEMENTARY INFORMATION: [See March 13, 1979 Introduction to the Permanent Regulatory Program Preamble for Addresses, Contacts and Supplementary information.] .

Section 760.4(b) states the responsibility of a State, first, to establish a process that includes a data base and inventory system for designating lands unsuitable and, second, to make it available to the public. Some commenters objected to having this information made available to the public. OSM has rejected these comments because this information is to be gathered, in part, with Federal funds, at public expense, and OSM therefore believes that the information should be made available to the public. Such information in the data bases also is of value to citizens in determining whether to file petitions and what information to include in them.

SUBCHAPTER F -- AREAS UNSUITABLE FOR MINING, 30 CFR PART 761 -- AREAS DESIGNATED BY ACT OF CONGRESS Section 761.5 contains definitions of terms and phrases of special importance for areas designated by Congress in Section 522(e) of the Act. OSM received comments on most of the definitions.

NO SIGNIFICANT RECREATIONAL, TIMBER, ECONOMIC OR OTHER VALUES INCOMPATIBLE WITH SURFACE COAL MINING OPERATIONS: A number of commenters offered alternatives for this phrase. Other commenters suggested deleting the word "economic'' from the list of values to be defined. Because the term "economic'' is part of the statutory language in Section 522(e)(2), OSM has not deleted economic considerations from the definition. Several commenters objected to the words "appreciable'' and "measureable'' in the definition. OSM agrees that these words lack the precision necessary for the regulations and they are not included in the final definition. Many commenters suggested deleting the words "disturbed'' and "hampered''. OSM has deleted these words from the final definition.

A commenter suggested that the definition include the phrase "Federal lands within the boundaries of any national forest included in the permit application.'' This phrase is taken from Section 522(e)(2), but does not modify "no significant recreational, timber. . . .'' OSM has rejected this addition because the phrase would be redundant and would confuse, rather than clarify, the definition. A number of commenters suggested adding "related'' to the definition so that it would read "No significant recreational . . . or other related values. . . .'' Because the words to be defined come directly from the statute, OSM does not believe that Congress intended to expand the language as suggested.

A commenter suggested deleting Subsections (b) and (c) of the definition and changing subsection (d) to read "scenic, archeologic, and historic interests which are recognized as part of the national heritage.'' The subsections are intended to define the specific values enumerated in the statute. If the commenter's suggestion were adopted, both "timber'' would remain undefined, and the proposed subsection (d) would restrict the meaning of "other values'' more narrowly than Congress intended. A suggestion to add the word "visual'' to subsection (d) was made by a commenter. OSM believes visual values are adequately covered under the general rubric of "esthetic'' and that the addition of "visual'' is not necessary. Several commenters suggested that the word "significant'' replace "appreciable, measurable, and noteworthy'' in the definition. Since the word "significant'' is part of the statutory language, OSM has written the final definition to give meaning to "significant.'' A commenter expressed concern that there is no distinction made in the definition between planned or managed recreational areas and areas not specifically set aside for recreational use. The statute makes no such distinction; it speaks only of "recreational . . . values''. OSM believes that the final definition reflects Congress' intent to protect recreational values. Several commenters suggested revising the definition to clarify how these various values would be determined to be incompatible with surface coal mining. They suggested deleting "esthetic'' as a value to be considered in Subsection (d). Another commenter believed that this term is too subjective. However, the statutory language says, ". . . other values incompatible with surface mining operations.'' In Section 101(c), Congress stated its intent to protect natural beauty. Because Congress intended that esthetic values be considered in the overall regulation of surface coal mining, OSM has decided to retain esthetic values in the definition. OSM has revised the final definition, however, to clarify how these various values would be determined to be incompatible with surface coal mining. OSM's final language is designed to satisfy the commenters' concerns and provide clear guidance for implementing this provision of the Act.

SURFACE OPERATIONS AND IMPACTS INCIDENT TO AN UNDERGROUND COAL MINE: A commenter suggested that the definition should be limited to subsidence and improperly related to all types of surface disturbances, because subsidence is the only surface disturbance probibited by Section 516 of the Act. OSM chose the proposed definition in order to provide comprehensive language that related to the definition of surface coal mining operations in Section 701(28) of the Act. Because that definition, in Subsection (B), relates to disturbances of the natural land surface and because sections 516(b)(9) and (11) also relate to surface disturbances other than subsidence, OSM believes that the final definition should cover all surface disturbances. Therefore, the proposed language has not been changed.

SIGNIFICANT FOREST COVER: Citing the "Wildlife Planning Glossary'' (PSW Forest and Range Experiment Station Technical Report PSW 13/1976), a commenter proposed that the definition contain the phrase "currently occupying the ground.'' OSM believes that this phrase is surplusage and has rejected this change.

{14991}OCCUPIED DWELLING: A commenter suggested adding the following sentence to the definition: "Mobile homes and trailer homes not permanently affixed to the land shall not be included within the definition of occupied dwelling.'' The commenter cited Section 102(b) of the Act which expresses Congress' intent to "assure that the rights of surface owners and other persons with a legal interest in the land or appurtenances thereto, are fully protected . . . .'' He stated that mobile homes are often not considered appurtenant to the land because of their moveable nature. OSM has rejected this suggestion because mobile homes are occupied dwellings in the usual sense of the word. The accepted meaning of dwelling is a residence, an abode or habitation. Had Congress intended that only conventionally built houses be included in this case, they would not have used the word "dwelling''. OSM believes that Congress intended to protect people in their homes, whatever type of homes they may be, including mobile homes.

Other commenters suggested exclusion of dwellings built after the permit application is filed. They were concerned about the possibility that dwellings may be builit after the permit application is filed, thus possibly preventing mining. OSM recognizes that in rare instances the prohibition against mining within 300 feet of an occupied dwelling may prevent an operator from mining all the way to the edge of his or her permit when someone builds a house close to the permit boundary. An operator would be well-advised to obtain a waiver from a potential owner before beginning to mine. Under the definition of valid existing rights (VER), an operator cannot claim VER for a right which he or she acquired after August 3, 1977. After August 3, 1977, an operator must either obtain a waiver or plan to mine within a distance of the permit boundary adequate to ensure that there will be no mining within 300 feet of any new dwelling.

A few commenters suggested that the word "temporary'' broadens the definition beyond Congressional intent. A commenter also stated that, if it is the intent of the definition to protect irregularly used vacation homes, then it should explicitly do so. Section 522(e)(5) is designed to protect people as well as property from the effects of surface mining near their dwellings. While the protection of the rights of property owners with interest in the land and its appurtenances is part of the overriding intent of Congress, Section 522(e)(5) specifically addresses the question of dwellings, making no distinction between permanent homes or homes affixed to the land; it says "any occupied dwelling.'' OSM believes that Congress intended "occupied dwelling'' to include both full-time and part-time occupancy. The usual definition of dwelling includes residence for a time as well as permanent residence. Therefore, the final definition retains the term "temporary.'' A commenter suggested that provision be made for waiving the prohibition against mining within 300 feet of an occupied dwelling when the owner of the occupied dwelling is also the permittee. This is not necessary because OSM does not intend a permit applicant to have to execute a waiver to himself or herself. When the owner of the occupied dwelling is also the permit applicant, no waiver is required.

PUBLIC BUILDING: Some commenters believed that the proposed definition was too broad, contrary to normal usage and included private dwellings. They suggested deleting "meetings or other group gathering'' to narrow the scope of the definition, so that it would only include buildings used for public business. OSM has decided to insert the word "principally'' to avoid prohibiting mining near buildings with only occasional use. Another commenter suggested adding a provision allowing the owner of a public building to waive the prohibition from mining within 300 feet, to parallel the waiver for mining within 300 feet of any occupied dwelling. Because the Act does not provide for such a waiver, OSM has not adopted this suggestion.

COMMUNITY OR INSTITUTIONAL BUILDING: Some commenters believed that this definition was too expansive and would include private structures used for meetings or gatherings of community groups or the public, however infrequent. They suggested revising the definition to include the word "primarily'' to qualify the use of the building. OSM has accepted this suggestion. PUBLIC PARK: Several commenters suggested deleting the word "adopted'' as it seemed unclear, unfamiliar in the context of parks and possibly redundant. OSM agrees and has deleted the term. Deletion of the phrase "by any Federal, state or local agency'' was suggested in order to encourage, and indeed provide for, privately owned land that is dedicated to park use while other commenters suggested deletion of the phrase "held open to the public'' in order to eliminate ambiguity and restrict the coverage of the definition. The Office believes that those lands which are owned by non-profit organizations whose primary purpose is the protection of natural resources, and which are open to the public, should be protected as provided in this Section since they are dedicated for public purposes. This protection is particularly important as such forms of ownership are increasingly common ways of protecting these resources, especially as available government funds become limited. OSM has rejected these suggestions because deletion of these phrases would result in more ambiguity. OSM believes that privately owned land which is held open to the public is not excluded from the final definition.

PUBLIC ROAD: Some commenters believed that the proposed definition is too broad and should be narrowed to include only vehicular travel on roadways owned or maintained by a Federal, State, or local agency. The threshold, they believed, for public road should be ownership and maintenance by a public agency. OSM believes that no reference should be made to ownership or maintenance by a public agency since it could exclude roads used by the public over an extended period of time, regardless of how they are maintained. Congress' intent was to prevent mining from interfering with the access of the public to any thoroughfare that was, and is frequently traveled by the public. Consequently, OSM had deleted any reference to ownership and maintenance of a road by a public agency from the final definition.

CEMETERY: A commenter suggested that, unless the proposed definition covers certain elements, such as the size of the area and the location of the bodies, then it is not justified and should be deleted in favor of a broad, universally accepted definition. OSM has retained this definition unchanged in order to specify what areas can be considered cemeteries. The use of the term "interred'' indicates that a cemetery is where bodies are intentionally buried.

VALID EXISTING RIGHTS: OSM received numerous comments on this definition. This provision exempts an operator from the prohibitions and limitations of Section 522(e), but the phrase "valid existing rights'' (VER) is not defined in the Act.

First, OSM decided that the VER phrase must be distinguished from the definition of substantial legal and financial commitments. See 30 CFR 762.5. The latter exemption applies to the petition process under Section 522(a), whereas VER applies to the Congressional prohibitions of mining under Section 522(e). This distinction suggests that, in order for property owners to qualify for VER and thereby mine in the prohibited areas of Section 522(e), they must have a property interest in the mine that is even greater than the substantial legal and financial commitments needed to mine despite a designation by petition under Section 522(a). Thus, OSM believes that VER must be more than "significant investments, that have been made on the basis of a long-term coal contract, in powerplants, railroads, coal preparation, extraction, handling and storage facilities, and other capital intensive activities,'' as substantial legal and financial commitments is defined in Section 762.5.

{14992}Second, the legislative history of the Act indicates that Congress wanted to avoid any taking in the implementation of Section 522(e) (Congressional Record, April 20, 1977, H 3827). There Congessman Udall opposed an amendment to delete the VER clause from the Act. He stated that if VER were deleted, the Act would not preserve valid legal rights which could not be done without "paying compensation under the Fifth Amendment to the Constitution.'' Thus, OSM has endeavored to determine the point at which payment would be required because a taking had occured, then to define "valid existing rights'' in those terms, i.e., those rights which cannot be affected without paying compensation.

The legislative history of VER also relies on United States v. Polino, 133 F. Supp. 722 (1955). That case concerned proposed mining of privately-owned coal within a National Forest. The court held that Polino's right to mine depended on whether the deed conveying the coal to him specifically granted the right of extraction by surface mining. The court decided that, unless the deed or lease "expressly grants stripping rights,'' the coal could only be mined by deep mining so as not to disturb the surface. The Polino decision does not relate directly to whether there might be a taking for which compensation must be paid. Rather, it relates to the nature of the right being conveyed between private parties and the method of interpreting the document which conveys that right; and the final definition of VER therefore incorporates these concepts.

Third, in determing how to define VER, OSM has researched case law on takings. These cases can be divided into at least two categories which may be applicable to the definition of VER: (1) diminution of value and (2) noxious use. Both theories were recently analyzed by the Supreme Court in Penn Central Transportation Co.

v. New York City, 438 US 104 (1978). As this case illustrates, the two theories are interrelated; there the Supreme Court analyzed both the extent to which the value of the property would be diminished and the harm that would result from the proposed use of the property.

The diminution of value theory has two elements: the amount of value that the property owner has given and the loss that the property owner will sustain. Under this theory, loss of value alone is not sufficient to establish a taking; a taking will be said to occur only if there is no reasonable remaining use for the property; i.e., if the Government's action would deprive the property owner of "all reasonable beneficial use of the property.'' 438 US at _. It is not enough to show that the owner has been deprived only of the property's most profitable use.

In analyzing the value of the property, the courts have distinguished an owner's value in an ongoing operation which must be halted, as compared with value that an owner has paid for some future operation that will be restricted. The taking cases reflect less sympathy for property owners who are denied some future opportunity to exploit their property interests based on prior beliefs that the property would be available for development; but most courts express concern over government interference with an ongoing operation which causes a 100 percent diminution in value unless it is a harmful use and falls within the noxious use category. This distinction suggests that VER could be defined differently for owners of coal which is essential to continue an ongoing mine, as compared to property rights in coal for a potential new mine. The concept of reasonable remaining use suggests another distinction between situations where a property owner holds both the coal and surface, as compared to someone who owns only the coal. In the former case, the property owner would probably be said to have some reasonable remaining use for the surface; whereas in the latter case, someone who owns just the coal might be said to have lost all reasonable remaining use if the coal cannot be developed.

The noxious use theory applies chiefly in situations where government invokes its police power to prevent some harmful use of the property. This theory encompasses not only actions that are blameworthy, morally wrong or conscious risk-taking, but also other uses that may be harmful to the public. In such situations, the courts have upheld government interference with property use even if the loss of value is 100 percent. This theory is combined with diminution of value when courts decide what amount of interference with the use of property will be allowed on the basis of the degree of harm that may be caused.

Where government regulations are designed to promote public health and safety or some other substantial public purpose, they have been upheld by the courts even if they destroy or otherwise adversely affect property interests. E.g., Goldblatt v. City of Hempstead, 369 U.S. 590 (1962); Nectow v . City of Cambridge, 277 U.S. 183 (1928); Miller v. Schoene, 276 U.S. 272 (1928). The test that is applied is whether the regulations are reasonably related to implementation of a policy that is expected to produce a widespread public benefit and whether the regulations are equally applicable to all similarly situated property. Thus, in Penn Central, the Supreme Court recognized that restrictions of property use would be upheld "when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.'' Thus, OSM has concluded that VER could be defined in a variety of ways and still avoid an unconstitutional taking. OSM recognizes, however, that in deciding the validity of this definition, the courts will focus on particular fact situations, including how much harm would be caused by the mining operation and whether the property owner still has some reasonable remaining use of the land.

The comments on VER raised a number of questions, which are discussed below, along with an explanation of how the final definition relates to these concerns.

Whether to retain the language in Subsection (c) concerning stay of permit? Commenters believed that this language was unnecessary because challenged permits could not be considered issued unless their issuance had been upheld in court. The final definition does not contain this language. OSM believes that it is not necessary because the final definition does not always require a permit in order to have VER.

Must documents conveying the mineral rights specify the method of mining or show that the parties contemplated surface mining?Some commenters claimed that any leases, deeds or contracts that an operator has obtained should not be required to specify a mining method in order to qualify as VER for surface coal mining. They believed that the documents themselves convey a right to the mineral regardless of the method of recovery. OSM has rejected these suggestions because the legislative history concerning the Polino case requires that the document must be interpreted according to the usage and custom at the time and place where it came into existence. Under the final definition the applicant must show that the parties to the document actually contemplated a right to conduct the same underground or surface mining activities for which the applicant claims VER.

Whether valid existing rights applies to underground mining? A few commenters were concerned that the definition of VER would apply only to surface coal mining and that additional or other rights would have to be obtained for separate underground operations. Under the final definition, a permit applicant may claim VER for underground mining.

{14993}Do prospecting permits have VER? As of this date, all Federal prospecting permits have now either expired or a preference right lease application is pending. Thus, VER is not an issue with respect to prospecting permits.

Are VER under the Act the same as under the Federal Coal Leasing Act Amendments or other Federal statutes? These commenters were concerned that all interpretations of VER be consistent. In the past, the term valid existing rights has been used in other Federal statutes where a change in law affects activities on Federal lands subject to valid existing rights. It appears however, that the prior case law which developed around the concept of VER does not apply to the Surface Mining Act because Section 522(e) affects both Federal and non-Federal lands and minierals; whereas, this prior case law applies to Federal leases and to homesteading and mining under the public land laws and the Mining Law of 1872. Under these statutes, Congress protected an individual's right to mine against destruction by withdrawal from private use; such rights were protected if a person had completed all except a few formalities that the law required to perfect a claim acquire a lease or receive a patent. But the case law concerning these statutes does not apply to situations of private coal ownership in a regulatory framework such as existing State law, other Federal environmental laws and the Surface Mining Act. This Act changed the context of VER significantly because it makes clear that surface coal mining on any private or Federal land is not an absolute right, but is subject to approval after a regulatory authority has determined that reclamation to the standards of the Act can be achieved. Thus, at least as of enactment of the Act, landowners no longer have an unconditional right to mine. OSM therefore believes that the definition of VER should take into account both the new regulatory framework created by the Act and the fact that the Act applies VER to both private and Federal lands. The final definition of VER applies only to the prohibitions of Section 522(e), however, and does not alter prior interpretations of this phrase under other Federal statutes.

Must VER be determined on a case-by-case basis? Some commenters believed that, if VER are determined on a case-by-case basis, the designation process would be delayed and the regulatory authorities would have an undue burden. OSM believes, however, that VER is a site-specific concept which can be fairly applied only by taking into account the particular circumstances of each permit applicant. OSM considered not defining VER, which would leave questions concerning VER to be answered by the States, the Secretary and the courts at later times. Without a definition, however, many interpretations of VER would be made and no doubt challenged by both operators and citizens; and once valid existing rights determinations are challenged, the permitting process would be delayed. OSM has therefore concluded that VER should be defined in order to achieve a measure of consistency in interpreting this important exemption. Under the final definition, VER must be applied on a case-by-case basis, except that there should be no question about the presence of VER where an applicant had all permits for the area as of August 3, 1977.

Are VER created merely by acquiring surface or coal rights? A few commenters believed that surface or coal rights alone constitute VER. They cited the cost involved and claimed that just compensation must be provided for all lands for which such rights have been acquired. Under the final definition, VER are not created by acquiring the coal rights alone. In order to have VER, a permit applicant must own the rights to the coal and must have all permits or the coal must be both necessary to maintain an ongoing operation permitted before August 3, 1977, and adjacent to that ongoing operation.

Would requiring permits in order to have VER favor wildcatters? Some commenters were concerned that, by requiring all permits in order to have VER, mining without a permit would be encouraged. The final definition is not limited to requiring all permits and OSM sees no reason to believe that mining without a permit will be encouraged.

What would constitute VER for haul roads? Some commenters were concerned that haul roads utilized for resources other than coal could have VER for surface coal mining operations. Others were concerned that the VER definition for haul roads be consistent with OSM's letter of October 3, 1978, to West Virginia. OSM's analysis indicated that there are two situations in which VER might be established for haul roads. First, an applicant or operator could have a specific right to construct and use a haul road, established by a recorded right-of-way, recorded easement or permit for a coal haul road as of August 3, 1978. The second situation which could establish VER for a haul road is the actual existence of a road as of August 3, 1977, which is being or could be used for coal haulage, including haul roads used for timber, stone or other minerals. Their use for hauling is established. Existing mines or other operations are dependent upon them. Although such roads may have to be upgraded to comply with the standards of the Act, it would be less damaging to the environment to continue the use of such a road than to require that a completely new road be constructed. Commenters' concerns that non-coal haul roads would qualify for VER must be balanced with the environmental disturbance of establishing new roads because many problems associated with haul roads_noise, dust, vibration_will continue regardless of whether the road is used for coal haulage. If a new road must be established for coal hauling, it will be necessary to disrupt additional land, regrade the surface, build a road bed, establish drainage controls and other facilities necessary to a new road. In addition, the problems of noise, dust, vibration and air pollution will be brought to a new area not previously affected. Accordingly, OSM believes that it is less damaging to use existing roads, whether or not previously used for coal haulage, than to require construction of additional roads. Therefore, all roads in existence as of August 3, 1977, have valid existing rights.

Should VER be defined differently for Federal and private lands? Many commenters believed that the proposed dual definition was discrimnatory. They believed that the definition for VER on Federal lands should be the only one and that surface or mineral leases should be sufficient to constitute VER. Under the final definition, VER is not defined differently for Federal and private lands. The intent of the proposed definition was to distinguish between VER on Federal and privately owned lands in order to take into account possible discrepancies between old and new Federal leases because pre-1965 Federal leases do not include a condition subjecting them to future regulations. OSM also intended to protect occupied dwellings, parks, roads and cemeteries with a narrow construction of VER for these important areas. As many commenters pointed out, however, this dual definition was not really workable because it did not distinctly separate Federal lands from private lands; there are situations where proposed mining on Federal lands could come within 100 feet of a public road or cemetery, or within 300 feet of an occupied dwelling. The assumption behind the proposed definition was that there would be no cases where, for example, mining on Federal lands would be proposed within 300 feet of an occupiedd delling. Upon reflection, OSM believes that this assumption was erroneous and the final definition contains no distinction between Federal and private lands.

{14994}Is the right to explore contingent on having VER? A few commenters stressed that exploration rights should in no way be contingent on VER; they believed the definition should be specific and clear on this point. Under Section 522(a) of the Act, exploration is not prohibited on areas designated unsuitable for mining; however, such exploration is subject to the requirements of 30 CFR 762.14. This Section clearly states that exploration may be conducted on lands designated unsuitable for mining.

How would having all necessary permits be different from an existing operation? Some commenters complained that the proposed definition for VER on State lands would require that a mine be in operation in order to claim VER. As defined in the final definition, VER would be different from having an existing operation in situations, for example, where an operator had all permits but had not yet begun work at the mine.

Should the definition of VER focus on ownership of land and coal rights, rather than holding permits? A few commenters claimed that ownership of land and coal rights alone should constitute VER, and that the final definition should be rewritten to reflect this view. They believed that designation of lands for which such rights have been acquired would constitute a taking. The final definition requires an applicant to have both the rights to the coal as of August 3, 1977; and either all permits or the need for coal adjacent to an ongoing operation permitted prior to August 3, 1977; thus, it does focus on ownership of the coal, but holding all permits is an alternative to demonstrating a need for coal adjacent to an ongoing operation.

Would defining VER as having all necessary permits promote mining under less strict controls? Some commenters believed that, if VER were contingent on having all permits, then existing operations could proceed under less stringent controls and thus subvert the purposes of the Act. Under the Act, however, all mining, whether conducted under permits issued prior to or after August 3, 1977, must be conducted according to the standards of the initial regulatory program. Similarly, after a State program is approved or a Federal program is implemented for a State, all mining, regardless when permitted, must be conducted according to the standards of the permanent regulatory program. Thus, OSM believes that, under any definition of VER there will be no difference in the stringency of controls that apply to existing operations.

In summary, OSM's final definition of VER is designed to avoid a taking which must be compensated and to be consistent with the guidance of the legislative history on this issue. In an effort to make the VER exemption more specific, OSM has defined VER in terms of a valid property right created prior to August 3, 1977, plus either (1) all necessary permits as of August 3, 1977, or (2) the coal is both necessary for, and adjacent to, an ongoing operation which was permitted prior to August 3, 1977. OSM also considered other concepts which might be included in the VER definition. They were: (a) the permit application was submitted before August 3, 1977; (b) the coal is necessary to continue an ongoing operation first permitted before August 3, 1977, but that coal might not necessarily be adjacent to the ongoing operation; (c) the coal is covered by a permit renewal or revision for an operation first permitted before August 3, 1977; and (d) distinguished between persons who own just the coal seam, as compared to those who own both the coal and the surface, by adding to the definition a new clause (a)(3) which would exempt someone who owned the coal alone and not the surface. OSM has rejected all of these alternatives because they would make the VER exemption overly broad and would not sufficiently protect the important areas set aside by Congress in Section 522(e). Item (c) would also be difficult to enforce; and item (d) has been rejected because it would greatly expand the definition and would exempt too many potential new mines from the prohibitions of Section 522(e). For haul roads, OSM has defined VER to include clearly established rights to construct a coal haul road and any other road in existence as of August 3, 1977.

SECTION 761.11 lists the areas where Congress has declared that mining is prohibited or limited. A commenter suggested that OSM add to that list a 1,000 foot buffer zone to prohibit mining near intermittent or perennial streams, rivers, lakes and reservoirs. OSM has not adopted this suggestion because Congress did not intend to impose a blanket prohibition on mining near bodies of water. Apparently Congress intended to protect streams through the permanent performance standards.

Section 761.11(c) concerns the prohibition on mining which would adversely affect any publicly owned park or any places included, or eligible for listing, in the National Register of Historic Places. The language of the regulation does not follow the Act verbatim because the Act incorrectly refers to historic "sites.'' The correct term from the National Historic Preservation Act (16 USC 470) is historic places and, as amended, that Act also applies to places eligible for inclusion in the National Register.

Many commenters suggested deleting the three determinations which paralleled Section 4(f) of the Highway Act. OSM has deleted these determinations to reduce the potential for confusing the Highway Act with the Surface Mining Act, and because they are appropriate to highways, but not parks or historic places. Thus, in cases where the regulatory authority determines that a proposed mining operation would adversely affect a publicly owned park or historic place, the agency with jurisdiction over that park or place would have to approve a permit for that operation. Mining could not proceed without such approval. The regulations concerning the prohibition of mining which would adversely affect publicly-owned parks or historic places are further discussed below in connection with 30 CFR 761.12(c).

Section 761.11(d) concerns the prohibition on mining within 100 feet of the outside right-of-way line of any public road, except where mine access roads or haulage roads join such right-of-way line. Four commenters suggested requiring operators to minimize haul road intersections. They wished to strengthen the protection of public roads. However, they ignored the fact that the language of the regulation is derived directly from Section 522(e)(4) of the Act. One commenter suggested that the regulation be revised to make clear that the 100-foot limit is measured horizontally, so that underground mining below a public road is not prohibited. OSM has accepted this suggestion because it believes that mining under a road should not be prohibited where it would be safe to do so.

Section 761.11(g) prohibits mining within 100 feet measured horizontally from a cemetery. Commenters suggested allowing mining within 100 feet of a cemetery if a waiver is obtained. The commenters believed that, if waivers are permitted for owners of private dwellings, this right should be extended to owners of cemeteries. Other commenters suggested that mining be allowed within 100 feet of a cemetery if it is relocated with the owner's consent. These commenters were concerned that the presence of cemeteries would prohibit mining. Nothing in the Act prohibits relocation of cemeteries under existing procedures under State law, before an operator applies for a permit. OSM believes that a waiver for mining within 100 feet of a cemetery is not authorized by the Act because the prohibition against mining within 100 feet of a cemetery comes directly from Section 522(c)(5) of the Act. Congress has only permitted waivers for occupied dwellings and chose not to allow them for cemeteries.

SECTIONS 761.12 (b) and (c) require the regulatory authority to reject permit applications for areas where mining is prohibited or limited under Section 522(e). Where there are boundary questions, the regulatory authority must send a copy of the relevant portions of the permit application to the appropriate agency for a boundary determination or clarification. When Federal lands are involved, the Director will make the boundary determination. Commenters suggested that there be a time limit on the Director's determinations after which the permit would be issued automatically if no determination had been made. OSM believes that legally there cannot be a time limit on a boundary question which relates to an area where mining would be prohibited. Other commenters suggested that there should be public participation in the Director's boundary determinations. OSM believes that there is no need for public participation in these determinations because this process is a ministerial function of simply checking legal boundary descriptions. Other commenters suggested that the language be revised to clarify that these procedures apply only if the regulatory authority is unable to determine the applicable boundaries. This suggested clarification has been accepted.

Section 761.12(d) concerns procedures to be followed by the regulatory authority where mining within 100 feet of the outside right-of-way of any public road is proposed. Commenters suggested that OSM delete the requirement that the applicant obtain approval of the authority with jurisdiction over the public road. OSM has not accepted this suggestion because OSM believes that it is proper for the public road authority to approve any proposed relocations.

Other commenters suggested that the public hearing required by the Act be held by the public road agency, not the State regulatory authority. The State regulatory authority has an obligation to provide an opportunity for a public hearing under the Act. That hearing need only to be informal and fact-finding in nature, however, and it may be possible for the State regulatory authority to utilize the public road agency to conduct the required hearing or to conduct a hearing jointly with the public road agency. These opportunities for cost-saving measures are not precluded by the final regulation. The term fact-finding has been deleted from the final regulation in order to avoid any suggestion that the hearing would have to be adversary or adjudicatory in nature. See U.S.

v. Allegheny Ludlum-Steel, 406 U.S. 742 (1972); and U.S.

v. Florida East Coast Railway, 410 U.S. 224 (1973). Other commenters suggested that OSM increase the time for preparation of a written finding, based upon information received at the public hearing, from 10 days to 30 days. They pointed out that 10 days may be insufficient time to complete the analysis of the public hearing material and prepare a written finding. OSM agrees with this suggestion and has therefore lengthened the time period to 30 days.

Section 761.12(e) provides that, where mining is proposed within 300 feet of any occupied dwelling, the permit applicant must submit a waiver from the owner. Several commenters suggested that the waiver should only come from the owner and not the occupants, as was proposed. OSM has accepted this suggestion because it follows the literal language of the Act. The proposed regulations required revealing to the State regulatory authority all consideration given for the waiver and required the waiver to be separate from a lease or deed. OSM has deleted the requirement to reveal all consideration given for the waiver because OSM believes that consideration given for the waiver is not useful in determining consent. The final regulation retains, however, the requirement for a separate waiver but an exception has been inserted for situations where the waiver is explicitly set forth in the lease or deed. In this manner, the regulation ensures that the owner knowingly granted the waiver.

Section 761.12(f) concerns procedures to be followed where a proposed mining operation might adversely affect a publicly owned park or historic place. Other related comments are discussed above in connection with Section 761.11(c). Some commenters suggested defining "adversely affect.'' OSM has not defined "adversely affect'' because similar or identical terms are used throughout the regulations without definition.

OSM also has not defined the statutory phrase "jurisdiction over'' in these regulations. There is no legislative history to indicate how Congress intended this term to be interpreted, nor is there any guidance in the legislative history concerning who should make the adversely affect determination. OSM has decided that this determination should be made by the regulatory authorities. Having more than one party make this determination could result in constant disagreement among agencies.

OSM interprets the Act as conferring authority on the Advisory Council and other Federal, State and local agencies which have advisory or regulatory responsibilities with respect to parks and historic places to approve all mining which would adversely affect those public parks or historic places. Thus, the language of the final regulation has been changed to reflect this interpretation by adding "or a statutory or regulatory responsibility'' to clarify "jurisdiction over.'' Such agencies include those that must be consulted or give their advice or approval regarding any actions that would affect a park or historic place. Parks and historic places will receive additional environmental protection through application of these agencies' expertise in evaluating situations where mining could produce adverse effects. Without this interpretation, many parks and historic places would be vulnerable to damage from surface coal mining operations.

In cases where the regulatory authority determines that a proposed mining operation would adversely affect a publicly owned park or historic place, the agency with jurisdiction over that park or place would have to approve a permit for that operation. Mining could not proceed without such approval. The determination regarding whether or not coal mining would adversely affect a publicly owned park will be made by the regulatory authorities during the permit evaluation process. This provision also implements OSM's decision to pass through to the States the various responsibilities for protecting historic places under the National Historic Preservation Act. In order to conform the designation regulations to the permit regulations (Subchapter G), OSM has chosen to pass through to the States all responsibilities under the National Historic Preservation Act.

Section 761.12(g) provides, if the State regulatory authority determines that the proposed mining operation is not prohibited under Section 522(e) of the Act and regulations, it may still consider a designation of unsuitability through the petition process. Commenters suggested deleting this Section because they maintained that the States have no authority to initiate the petition process on non-Federal lands or lands outside the prohibitions of Section 522(e). They believed that the petition process is limited to citizens. OSM has included this provision in order to clarify the relationship between the prohibitions of Section 522(e) and the petition process. State agencies are included in the definition of "person'' under Section 700.5 and, as persons, can initiate a petition on their own where they believe that an area is unsuitable for mining even though it it not covered by the prohibitions of Section 522(e). To clarify that States may only designate an area unsuitable pursuant to a petition, OSM has added "pursuant to appropriate petitions'' to the final regulation. SUBCHAPTER F -- AREAS UNSUITABLE FOR MINING, 30 CFR PART 762 -- CRITERIA FOR DESIGNATION AREAS AS UNSUITABLE FOR SURFACE COAL MINING OPERATIONS SECTION 762.4 Section 762.4 explains that the criteria in Part 762 are to be used by the State regulatory authorities to determine unsuitability. Commenters suggested that the Section include a statement that the State regulatory authorities have a duty to act on petitions. This responsibility is already stated in Section 764.4(b) which specifies that States have the responsibility to develop procedures to designate lands unsuitable for mining consistent with Part 764 which requires State regulatory authorities to respond to petitions. Other comments suggested that this part be revised to provide for a role of the Forest Service in determining the best use of Forest Service lands. Under the Department of Interior's division of responsibilities and functions, OSM would handle the petition process for Federal lands, while the Bureau of Land Management would handle the Federal coal lands review process. OSM is now working out memoranda of understanding among the Interior surface managing agencies and will follow a similar course with other agencies including the Forest Service.

SECTION 762.5 Section 762.5 sets forth the definitions of terms contained in the designation criteria.

FRAGILE LANDS: It is important to note that this definition does not attempt to imply any degree of significance for those lands defined as "fragile.'' The determination of significance is left to the decision on the petition itself. Also, the listing of examples of lands that may fall within the definition of fragile lands is not meant to be all inclusive. Many commenters suggested that the definition was too broad and provided many suggestions for rewording it. Most focused on adding qualifiers to the definition that would limit its scope. The commenters often confused the criterion by which the regulatory authority determines whether an area should be designated unsuitable with the definition of fragile lands. OSM believes that the qualifiers already in the criterion of Section 762.11(b)(2), e.g., "significant'' and "important'', are sufficient to ensure that areas lacking important values or natural systems are not designated unsuitable. The definition is meant to provide guidance on what general types of resources can be considered fragile lands, not a list of areas which can or should automatically be designated unsuitable.

Many commenters suggested removing buffer zones adjacent to the boundaries of areas where surface coal mining operations are prohibited under Section 522(e) of the Act from the examples of fragile lands. They generally indicated that the mere fact that an area serves as a buffer zone does not mean that it is fragile. By providing for buffer zones, OSM is ensuring that areas around national parks and other Section 522(e) areas not be overlooked as fragile lands. As noted above, including these areas as examples does not mean that they would automatically be designated unsuitable. Some commenters suggested deleting the definition entirely. OSM believes, however, that deleting the definition would not provide the guidance to the regulatory authorities, industry or the general public which is necessary for identifying possible fragile areas.

Adding National Natural Landmarks to the definition of fragile lands was suggested. These landmarks receive the same kind of protection as historic places, but they are listed on a different register. They include geologic formations and certain ecosystem types which logically constitute fragile lands and are not covered in Section 522(e)(3) which only relates to National Historic Places. OSM has accepted this suggestion.

RENEWABLE RESOURCE LANDS: This definition has been moved to 30 CFR 700.5 and is discussed in the preamble concerning that section.

HISTORIC LANDS: Some commenters suggested adding the adjective "important'' to modify historic or cultural districts. Commenters who asked that "important'' or other qualifying words be added to the definition were suggesting that a test of importance or significance be added without providing any means of determining that significance or importance. OSM has rejected these comments because adding this qualifier would permit State regulatory authorities to disregard petitions without a hearing and compiling a record, by deciding that the area was not important or significant. The significance test is properly left to the actual decision on the petition using the criteria in the Act which are repeated verbatim in Section 762.11.

Some commenters believed that paleontological sites should be included under fragile lands. However, paleontological sites do not logically belong under fragile lands because they are more like archeological sites and, as such, are of historic importance. Other commenters apparently believed that sites having religious or cultural significance to Indian tribes are always on tribal lands and are already protected under different Sections of the Act or now belong to someone else and their disposition is no longer a matter for Indian concern. For these reasons, the commenters suggested deleting the reference to Indian sites. OSM has not accepted this suggestion because the significance of Indian or cultural sites should determine their status, not their location on tribal lands.

Other commenters requested the addition of "without limitation'' after the word "including.'' OSM has rejected this suggestion because it would not add anything meaningful to the language of the definition. A commenter suggested changing Indian tribes to Native American, ethnic or religious groups. OSM has accepted the Native American and religious groups, but rejected the suggestion to included places important to ethnic groups, believing that places important to ethnic groups are already covered. Another commenter suggested adding a provision that the definition of historic lands shall not be narrowly construed. Narrow or broard construction language does not add anything meaningful. Construction will occur at the time a petition is evaluated, and should be left to that evaluation. Therefore, OSM had not accepted this suggestion.

Some commenters suggested deleting sites eligible for listing in the National Register of Historic Places. OSM did not accept this suggestion because, as discussed in connection with Section 761.11(c), the National Historic Preservation Act of 1966, as amended, provides the same protection for places eligible for listing as for those places already on the National Register of Historic Places. In amending the National Historic Preservation Act, Congress intended that Federal agencies should implement this protection for eligible places. OSM has decided that, for the purposes of Subchapter F, a place is "eligible'' at the time the notice of its eligibility is published in the Federal Register.

NATURAL HAZARD LANDS: Some commenters suggested that this entire definition be deleted. OSM believes that deleting the proposed definition and leaving only the language of Section 522(a)(3)(d) would not provide any guidance to State regulatory authorities concerning the types of lands that might be considered for designation as unsuitable for mining because of natural hazards. In OSM's view, the terms in the Act should be defined to achieve some uniformity in the application of this criterion.

Many commenters suggested rewording the definition to include a general statement defining a general category preceeding specific examples that provides an overview of the type of areas that should be designated as unsuitable and to provide a more logical approach to categorizing those lands. OSM has accepted this suggestion and has reworded the final definition to provide a general description of these lands preceding the specific examples.

{14997}This definition was developed to provide examples of natural hazard lands. As written, the definition does not necessarily mean that an area falling within the definition would be automatically considered unsuitable for surface coal mining operations. It is left to the discretion of the State regulatory authority to determine whether an area is unsuitable for surface mining because of natural hazards. A commenter suggested that an avalanche is a natural hazard and as such should be mentioned in the specific examples. OSM has accepted this suggestion because avalanches are serious natural hazards. Another commenter believed that subsidence is not a natural hazard and susceptibility to subsidence should not be a basis for designating lands unsuitable for mining. He further pointed out that the fact that subsidence may be involved in underground minimg is recognized and provided for in Section 516(b) of the Act. OSM believes that natural subsidence is a natural hazard which can be considered a "cave-in'', as mentioned in the specific examples. Moreover, because subsidence which is attendant to underground mining is indeed provided for in the Act, OSM has deleted this term from the definition of natural hazard lands.

SUSTANTIAL LEGAL AND FINANCIAL COMMITMENTS: OSM received more comments concerning this definition than any other issue in Subchapter F. OSM has considered three principal alternatives concerning this definition and several subalternatives. They were: First, leave the definition as written; second, do not attempt to define substantial legal and financial commitments and settle each issue on a case-by-case basis; and, third, revise the definition to reflect the legislative history by including an example of substantial legal and financial commitments and by deleting references to major investments, legally enforceable and cancellation penalties. OSM has decided on the third alternative. Each subalternative is discussed separately below.

In response to many comments, OSM has considered whether to include the costs of acquiring coal in place or the right to mine it as constituting a substantial legal and financial commitment by itself. The legislative history clearly indicates that mere ownership or acquisition costs of the coal alone or the right to mine it by itself do not constitute "substantial legal and financial commitments.'' Following is a quote from House Report 95 218, p. 95 (1977): The phrase substantial legal and financial commitments in the designation section and other provisions of the Act is intended to apply to situations where, on the basis of a long-term coal contract, investments have been made in power plants, railroads, coal handling and storage facilities and other capital-intensive activities. The Committee does not intend that mere ownership or acquisition costs of the coal itself or the right to mine it should constitute "substantial'' legal and financial commitments.'' Numerous commenters believed that the costs of acquiring the coal in place or the right to mine it should constitute "substantial legal and financial commitments.'' The rationales for their comments ranged from there is no basis in the Act or legislative history to preclude these costs, to the costs of acquisition of the coal and the right to mine it are often the most substantial legal and financial commitments made by the company. A commenter suggested inserting "alone'' in order to make clear that these costs could be counted only if other costs have been incurred. This suggestion is based on the Committee Report language above. OSM has accepted this suggestion.

OSM has considered whether to define major investments and, if so, which types of investments to include in the definition. Alternatives considered were: 1. Redefining "major investment.'' The proposed definition inserted several provisions not covered in the legislative history and did not include the following example of "substantial legal and financial commitments'' from H.R. 95 218, pp. 94 95: "An existing mine might not be one actually producing coal, because it was in a substantial stage of development prior to coal production. Thus the meaning of existing operations is extended to include operations for which there are "substantial legal and financial commitments'.'' 2. Revising the definition to delete any reference to major investments. Instead of using the example above, the drafters of the proposed regulation defined "substantial legal and financial commitments'' through the use of the following terms which are not in the Act or legislative history: major investments of money, improvements and fixed equipment, legally enforceable, sales, and contracts which cannot be cancelled except upon payment of a substantial penalty. As a result of using the above five words and phrases, the proposed definition of substantial legal and financial commitments did not accurately reflect the legislative history. OSM has revised the final definition to reflect the legislative history by deleting the above words and phrases. 3. Revising the definition of major investment by retaining the provision relating to aggregate capital expenditures and deleting the provision on aggregate assets. Many commenters believed that a major investment should be determined by the size of the investment compared to the coal contract, not the size of the company making the investment. They therefore opposed the aspect of "major investment'' based on aggregate assets, but not the portion relating to aggregate capital expenditures. OSM has deleted from the final definition both categories, however, because it appears that Congress intended to base substantial legal and financial commitments on the coal contract, not aggregate assets or capital expenditures. See quotation above from H.R. 95 218.

4. Revising the definition of major investment by establishing a minimum dollar amount or a fixed percentage of anticipated costs, so that anything over the established minimum would quality as substantial. Several commenters suggested that a minimum amount, such as 2 or 5 million dollars, be established to define substantial. One commenter suggested that expenditures of 10 percent or more of anticipated costs of the operations should be considered substantial. A basis for the 10 percent was not provided. OSM has determined that any fixed dollar amount or percentage would be arbitrary and might impose disproportionate burdens on smaller companies. OSM has also considered whether to extend the January 4, 1977, date for exemption to January 4, 1978. Section 522(a)(6) specifies the cut-off as of January 4, 1977. One commenter suggested that the January 4, 1977 date for exemption be changed to January 4, 1978, because the 1977 date is prior to the passage of the Act and because this commenter believed that Congress did not set forth retroactive provisions in the Act. In OSM's view, the January 4, 1977 date is firmly established in the Act, however, and cannot be changed by regulation. Further, Congress explicitly intended to apply many other provisions of the Act to already existing operations.

A commenter suggested that the definition be revised to explain that substantial legal and financial commitments do not apply to exchanges of private fee coal under Section 510(b)(5). OSM has considered whether to specify that this definition of substantial legal and financial commitments is not the same as substantial financial and legal commitments in Section 510(b)(5). House Report No. 95 218 (quoted above) may suggest that the two phrases have the same meaning; however, the definition in these regulations relates only to Section 522 and Subchapter F.

{14998}Another commenter suggested that draglines be included as substantial. Because purchase of a dragline is a capital-intensive activity, it qualifies as a component of a substantial legal and financial commitment. A commenter suggested that exploration costs should be considered substantial. Exploration costs are incurred before there is an existing mine and therefore cannot qualify as a substantial commitment by themselves, but only as part of the overall costs and commitments to mine. Another commenter suggested that advance royalties should be considered substantial. Advance royalties alone cannot be considered substantial commitments, but only as part of overall costs of establishing the mine.

SECTION 762.11 Section 762.11 lists criteria for designations of unsuitability. A commenter suggested that States only be required to adopt the mandatory criterion of Section 522(a)(2) and not the discretionary criteria of Section 522(a)(3). The parallel construction in the Act for both types of criteria suggests, however, that both the mandatory criterion (technological and economic infeasibility of reclamation) and the discretionary criteria must be used by the State regulatory authorities in evaluating petitions. Moreover, all of these criteria must be adopted by a State in order to have an approvable State program under Section 503 of the Act.

Some commenters suggested providing some specific guidance or thresholds for State regulatory authorities to apply in determining whether the discretionary criteria have been met. OSM has considered both revising the regulations to provide quidance for State regulatory authorities through threshold criteria developed on a regional basis and issuing technical guidelines for State regulatory authorities to use in determing when to apply the discretionary designation criteria. OSM has rejected both alternatives. Given the language of Section 522(a)(3), OSM believes that it cannot restrict the discretion of the States beyond the specific language of the four criteria in the Act. Providing threshold criteria or guidelines might restrict this discretion and would not be consistent with the weighing of resource values on a case-by-case basis which is required by the Act.

Additional comments suggested various elaborations on the criteria for economic and technological infeasibility of mining. One commenter suggested providing specific standards concerning infeasibility of reclamation. The commenter stated that the legislative history provided some guidance for determining the infeasibility criteria. The references given were merely summaries of the Act's requirements with no guidance. The same commenter stated that a checklist of performance standards would facilitate citizen participation. OSM has rejected this suggestion because a checklist of performance standards which is not a verbatim copy of OSM and/or State regulations could be misleading and possibly preempt the permit process.

A commenter suggested a provision for generic level designations, which presumably would require the State regulatory authority to identify all areas that fit the description of the generic type. For example, if a petitioner provided the regulatory authority with allegations that certain ecosystem types were not amenable to reclamation, the regulatory authority would then have to decide whether it agreed with the evidence and, if it did, proceed to locate all areas in the State where the particular ecosystem type was found.

Another commenter suggested that OSM first identify physical variables which determine a site's amenability to reclamation, such as soil type, contour, vegetation, climate; then develop models using these variables, along with an assessment of current technological capacity to reclaim to Federal standards, and cost estimates for reclamation. Objective cutoff points could be established defining technological and economic feasibility by deciding how much and what level of technology can reasonably be utilized and how much expense is acceptable. This commenter believed that, without elaboration of objective scientific factors, the regulations for designation add little to the structure of the permit approval process.

Another commenter suggested that OSM should provide binding guidelines for determining that reclamation is not technologically and economically feasible. This commenter believed that binding guidelines are necessary because the Act provides a mandated scheme for designating property, and, at the present time, there is no method to determine what is economically or technologically reclaimable. Additionally, by requiring each State to gather its own information, there will be duplication of effort, possibly inconsistent approaches from State to State and chaos among the regulatory authorities. This commenter believed that technologically and economically reclaimable land is presently unknown and that no regulatory authority presently has the capacity to make such a determination. Still another commenter was concerned that, without national guidelines it will be virtually impossible, in States where coal mining is economically significant, to have the State regulatory authority set up objective criteria. The commenter believed the objective criteria are necessary because of the economic pressure in these States. Further, a national standard would prevent inconsistencies among the States.

OSM has rejected all the above suggestions related to feasibility of reclamation. OSM believes that Section 522(a)(2) of the Act provides the sole criterion: when reclamation is not feasible for technological or economic reasons. Regarding elaboration of this criterion, it is virtually impossible to provide national guidance for applying this criterion to every piece of land where reclamation may or may not be feasible. In general, this determination must be made on a site-specific basis using a combination of information and analysis regarding both the site and the equipment, vegetation, and reclamation techniques which might be proposed by an operator, real or hypothetical. In other words, there exists a nearly infinite number of variables for a decisionmaker to consider in determining whether reclamation is feasible. OSM agrees that it will be difficult to make decisions based on the infeasibility criterion. Nevertheless, in cases where there is information relevant to specific areas or generic information on soil types, ecosystem types or local hydrology, this information may be used to designate lands unsuitable based on the infeasibility criterion.

The House Interior Committee has stated that the designation process should be applied on an area basis and upon petition, indicating that Congress intended to tie the process to specific geographic areas. H.R. 95 218, p. 95 (1977). OSM has therefore tied the designation process to specific geographic areas where there might exist conditions which would preclude successful reclamation. In other words, a petitioner would be responsible for identifying a specific area and presenting allegations to show that this specific area met one of the designation criteria, while the State regulatory authority would be responsible for gathering additional facts and asking the public for additional information. However, the State regulatory authorities will gather generic level information in their data bases and inventory systems for use by the public and the State in preparing and considering petitions. Because generic level designations would require a two-tiered decision process by the State regulatory authorities, they would impose an additional burden on the States.

The idea of providing objective standards against which to measure reclamation feasibility is attractive because it would ensure designation if petitioners could convince a regulatory authority that certain conditions were present on a site. The reality of the situation is, however, that there are too many variables to be taken into account and only occasionally will the presence of certain conditions, by themselves, be sufficient information on which to base a designation decision. For these reasons, OSM has decided not to elaborate on this criterion.

{14999}Some commenters suggested that a single petition should trigger a comprehensive review for all the designation criteria resulting in a positive declaration that the lands are suitable for mining. OSM has rejected this suggestion for several reasons. Once a petition has been ruled upon and if the regulatory authority makes a negative determination, an applicant may pursue a permit application through the permit process, but a negative determination on a petition does not result in a positive determination of suitability. Because all of the designation criteria do not apply to every situation, the addition of a requirement for a comprehensive review based on one petition could result in a waste of time and effort. A petitioner could request a comprehensive review, providing that the statement or allegation of facts and supporting evidence pertain to all the criteria, but there is no authority under the Act to require a petitioner to provide facts concerning all possible criteria. Under the Act, the threshold test for a petition is that it must contain allegations of fact and supporting evidence, presumably for the criterion on which the petitioner believes a designation should be based. Given the requirements of the Act, it would be an unfair burden on the petitioner to require him or her to produce information regarding criteria for which he or she has no concern.

The final regulation provides maximum flexibility for the State regulatory authorities to cover criteria other than those listed in a single petition. Thus the regulatory authority can cover as many additional criteria as it wishes under the present regulation.

Some commenters suggested adding "upon petition'' to all the criteria in order to clarify that the areas in Part 762 may only be designated through the petition process. OSM has accepted this suggestion.

A commenter suggested revising Section 762.11(b) by adding a requirement that the petitioner specifically allege in a petition that a mining operation would definitely result in damage. This commenter believed that this change would screen out petitions not asserting facts and supplying supporting evidence. OSM has rejected this suggestion because this determination is left to the actual decision on the petition. Further, even where damage would result, there is discretion to not declare the area unsuitable for mining.

In summary, the final regulations will not preclude the State regulatory authorities from designating an area unsuitable for reasons other than those alleged in the petition. For example, in the course of a petition proceeding, a State regulatory authority may uncover information concerning the petitioned area which, although very important, is outside the scope of the original petition. In this case, the State regulatory authority is free to designate the area unsuitable on the basis of a criterion not in the original petition.

Some commenters suggested that there should be more definitive criteria for designating lands unsuitable. In response to these comments, OSM has changed the language of the regulations to be identical with the language of the Act by deleting "all or'' and "ecologic''. Other comments suggested various modifications, additions or deletions. OSM has rejected all suggestions of variation from the language of the Act. The final criteria repeat the language of the Act.

SECTION 762.12 Section 762.12 describes how a State may adopt additional criteria. Some commenters suggested deleting this entire section. They argued that it was too open ended, was unfair to operators and the public, would lead to Federal land-use planning and violated the Act because Congress had not specified that States could adopt more stringent designation criteria. Other commenters argued that it exceeded the intent of the Act because Section 522 does not authorize the Secretary to adopt more stringent criteria. OSM added this section to implement Section 505 of the Act and to specify that States may adopt additional designation criteria that would be more stringent than those set forth in Sections 522(a) (2) and (3). OSM has changed the final regulation to clarify that the additional criteria must achieve additional protection of the environment to insure that Section 505 is implemented. Additionally, the final regulation clarifies the fact that the Secretary is responsible for additional criteria on Federal lands only, not private lands within a State.

SECTION 762.13 Section 762.13 sets forth exemptions from designations of lands unsuitable for mining. The comments unanimously opposed the proposed provision of Section 762.13(b) that an exemption is attached to an operator, not the land. OSM has accepted this view and changed the final regulation accordingly, believing that exemptions properly apply to the land, not the operator.

SECTION 762.14 Section 762.14 provides for exploration on lands designated unsuitable for mining. Many commenters objected to having exploration on designated lands be approved by the State regulatory authorities and cited Section 522(a)(1) of the Act which states ". . . such designation shall not prevent the mineral exploration pursuant to the Act of any area so designated.'' Other commenters suggested deleting "to insure that exploration does not interfere with any value for which the area has been designated unsuitable for surface coal mining.'' OSM believes that this phrase is necessary to ensure that exploration will be carried out in such a way as to protect the value specified in the Act. Regulatory authority approval does not mean denial of the right to conduct exploration for coal; its purpose is to ensure that the methods used in exploration operations are compatible with the protection of those lands and areas designated unsuitable for mining. A commenter suggested limiting exploration on designated lands to the core drilling method and banning surface exploration completely. OSM has rejected this comment because only in cases where the values for which the land was designated were threatened by a particular method of exploration would the method for exploration be at issue. The State regulatory authority should be able to specify the exploration method in those cases, but OSM believes a blanket banning of all surface exploration methods is unnecessary. OSM has inserted the word "coal'' in the second sentence to indicate that noncoal exploration is not covered and has deleted the phrase "involving the removal of more than 250 tons of coal in any one location'' to insure that all exploration would take place using methods to protect the designated areas.

SUBCHAPTER F -- AREAS UNSUITABLE FOR MINING, 30 CFR PART 764 -- STATE PROCESSES FOR DESIGNATING AREAS UNSUITABLE FOR SURFACE COAL MINING OPERATIONS There was no section in the proposed regulations explicitly stating OSM's policy on burden of proof during the designation process. The implicit policy was to assign no burden of proof to any party. Many comments were received on this issue, leading OSM to consider four alternative ways of assigning the burden of proof. Those four alternatives were: (1) the regulations as proposed, which did not assign a burden of proof to any party; (2) assign the burden of proof in favor of a petition to the regulatory authority, to be presented to an independent decisionmaker; (3) allow the regulatory authority to take a position for or against a petition, with an independent body acting as decisionmaker; and (4) assign the burden of proof to the petitioner, with the regulatory authority remaining as a neutral decisionmaker.

{15000}OSM has chosen alternative 1 in modified form, which does not assign a burden of proof to any party; but, in order to assure that state regulatory authorities are not burdened with frivolous petitions, the final regulations specifically allow for rejection of frivolous petitions. Additionally, "brief'' has been deleted from the requirement to describe how mining would adversely affect an area, and "approximate'' has been deleted as a part of the requirement to describe the size of the petitioned area.

There are many reasons why OSM chose to assign no burden of proof to any party, and to make this policy explicit in the final regulations. Section 522 was included in the Act in order to insure that a planning process would be used to assure that mining is conducted only when compatible with other values. In the usual context of planning decisions from which the criteria of Section 522(a)(3) were developed, no single party or agency is assigned a burden of proof. In general, planning decisions are not made in an adversary proceeding but are the result of professional opinion, public participation and weighing of resource values. Thus, the criteria of Section 522(a)(3) are not suitable for an adversarial proceeding, but rather a planning procedure involving professional opinion, public participation and a weighing of resource values.

Moreover, Section 522(c) provides a very low threshold for the petitioner's burden to present a petition: "Such a petition shall contain allegations of facts with supporting evidence which would tend to establish the allegations.'' The same standard is necessary to be able to intervene in the process. Other than this description of the required petition contents, Section 522 contains no suggestion that there be a burden of proof on the petitioner. In fact, there are numerous provisions of Section 522 which indicate that the petition process is intended to trigger an internal planning-type review by the regulatory authority; they include the following: Section 522(a)(1)_"Each State shall establish a planning process enabling objective decisions based upon competent and scientifically sound data as to which, if any, land areas of a State are unsuitable for all or certain types of surface coal mining operations pursuant to the standards set forth in paragraph (2) and (3) of this subsection''; Section 522(a)(4) requires a State to demonstrate that it has developed or is developing a process which includes: (i) a State agency responsible for surface coal mining lands review; (ii) a data base and inventory system which will permit proper evaluation of the capacity of different land areas of the State to support and permit reclamation of surface coal mining operations; (iii) a method or methods for implementing land-use planning decisions concerning surface coal mining operations; and (iv) proper notice and opportunities for public participation, including a public hearing, prior to making any designation or redesignation pursuant to this Section; Section 522(c) requires the regulatory authority to issue and furnish to the petitioner and any other party to the hearing, a written decision regarding the petition and the reasons therefore and, prior to designating any land areas as unsuitable, the regulatory authority must prepare a statement containing: (i) the potential coal resources of the area; (ii) the demand for coal resources; and (iii) the impact of such designation on the environment, the economy, and the supply of coal (Section 522(d)).

These three requirements indicate Congress' concern that the State regulatory authorities have the proper resources and procedures to conduct a planning-type review. If the process envisioned by Congress were not an internal planning-type review, the Act would contain some definite standards against which to measure evidence. There are none. In fact, for four out of five of the designation criteria, the Act provides discretion to the regulatory authority. Thus, even if the regulatory authority finds that mining would affect a valuable resource, it can determine that the value of mining the coal outweighs the value of preserving the other resource and proceed to not designate the area unsuitable.

Based on these considerations, OSM has determined that no burden of proof will be assigned to anyone in the final regulations. Designation decisions are to be made in the same fashion as land use planning decisions, with the regulatory authority gathering facts and analyzing these facts which are also available to the public. Additionally, the public will gather and analyze facts and will have access to the record being compiled by the regulatory authority. When the regulatory authority makes its decision, it will consider all the facts gathered by itself and the public. It will also consider the coal resource statement.

OSM has decided not to assign the burden of proof in favor of a petition to the regulatory authority for the following three reasons. First, under this alternative, it is unclear how the regulatory authority would exercise its discretion to designate or not designate under the discretionary criteria of Section 522(a)(3). Second, where the regulatory authority is unable to prove that an area is unsuitable for mining and the opponents present a strong case, the record would suggest that the area was suitable for mining. An operator could then proceed to use the designation record in a permit proceeding as evidence to support the permit application. Thus the permit process could possibly be preempted by a designation proceeding. Third, this alternative would impose a burden on the coal industry to attempt to disprove that lands are unsuitable for mining. In the event that no person in the coal industry had an interest in arguing against a designation, the regulatory authority would be unable to argue against a designation. As a result, some areas where coal mining could be the wisest use of the resources on the land might be wrongly designated.

OSM has also rejected the alternative of allowing the regulatory authority to take a position for or against a petition, with an independent body acting as decision maker. In order to prepare a case, the regulatory authority would have to decide early in the process which side to argue. Under these circumstances the regulatory authority would likely make this decision without adequate information. Also, it would be difficult for a petitioner or intervenor to know what information to prepare to support his/her position without knowing which side of the case the regulatory authority intended to argue.

OSM did not choose to assign the burden of proof to petitioners who would be responsible for supporting the petition before the regulatory authority, although the only legislative history that OSM could uncover concerning burden of proof assigns the burden to petitioners. During the Congressional debates on H.R. 11500, a predecessor to the Act which contained language identical to section 522(c), Congressman Teno Roncalio explained the designation process and defended it against Administration criticisms. Congressional Record, June 20, 1974, p. 20340. In so doing, he stated, "The burden of proof for unsuitability is on the petitioner not the regulatory authority . . .'' OSM has decided, however, not to assign the burden of proof to the petioner. There are many reasons for this decision. Most petitioners could not afford to sustain the entire burden of proving that an area should be designated unsuitable throughout a designation proceeding. This burden would effectively limit participation in the designation process to petitioners with financial resources and access to legal counsel. Additionally, with the low threshold for a petition in Section 522(c) and the requirement for a public hearing within 12 months, the petition process could become a way to disrupt and delay the permit process without actually having lands designated.

{15001}Further, even if a petitioner succeeded in proving that an area was unsuitable under the 522(a)(3) criteria, the regulatory authority would still have discretion to refuse to designate it, and a petitioner's only recourse would be to seek judicial review of that rejection as arbitrary and capricious. Also, where a petitioner did not prevail, there would exist a record that the area is suitable for mining. An operator could then proceed to use the record to support issuance of a permit, and the permit process could possibly be pre-empted by the designation proceeding.

Another reason for rejecting this alternative is that it would impose a burden on the coal industry to attempt to disprove that lands are unsuitable for mining. In the event that no person in the coal industry had an interest in arguing against designation, the arguments in favor of not designating an area would remain unheard. Finally, this alternative seems inconsistent with the many requirements in Section 522 for the State to acquire data on its own. If Congress had intended to place the burden on the petitioner, it would not have required the States to have an elaborate process for gathering data, maintaining a data base and inventory system and for preparing a coal resource statement.

Commenters suggested various revisions to the general process requirements of this section. One suggested revising the regulations to specify "all'' data and "all'' information "received by the regulatory authority.'' Another commenter suggested deleting "and other relevant information.'' An additional commenter suggested adding the word "planning'' before "process,'' otherwise the process would be preempted. OSM has rejected all of these suggested revisions. The deletion of "planning'' reflects OSM's interpretation of the Act that the phrase "planning process'' implies a process more elaborate than that needed to respond to petitions.

SECTION 764.13 Section 764.13(a) specifies who has a right to petition to have an area designated unsuitable. Commenters suggested various additional tests in order to limit eligibility, such as (a) living adjacent to the proposed mine, (b) having a legal interest, and (c) being directly tied to the mining. OSM has rejected these suggestions because Congress specified that the standard for any person having an interest which is or may be adversely affected, should be as broad as that established by the Supreme Court in Sierra Club v. Morton, 405 U.S. 727 (1972). Leaving the phrase as defined in the proposed regulations under Part 700.5 accomplishes that goal.

Section 764.13(b) lists the information that a petitioner must set forth in a petition. Commenters suggested changing "indicating'' to language from the Act, "which would tend to establish,'' because using the language of the Act would make the regulation less susceptible to erroneous interpretation. OSM has accepted this suggestion. Some commenters suggested that the petitions should contain more detailed information such as (1) requiring the petitioners to supply a list of affected fee-title holders, (2) requiring the petitioners to supply additional detail on the petitions, (3) allowing the regulatory authority to require any other applicable information as it deems necessary, (4) defining more precisely the location and size of the area and (5) adding the qualifier substantially to describe how mining has affected the area. Other commenters suggested that the regulatory authority assist the public in accumulating data for petitions. OSM has rejected most of these suggestions in order not to make the requirements for petition contents more restricted than the Act.

In response to another comment, OSM has deleted "statement or'' from Section 764.13(b)(2) to track more closely the language of the Act. OSM does not intend for petitioners to supply surveys to the regulatory authority, nor does it intend for petitioners to supply information regarding location in metes and bounds.

Sections 764.13(b)(4) and 769.13(c) require the petitioner to give his/her name, address and telephone number. Commenters suggested that there should be some way to protect the confidentially of the petitioner. In response to these suggestions, OSM has considered requiring the regulatory authority to keep the petitioner's name confidential at the request of the petitioner. Additionally, OSM has considered providing that petitioners who believe they are being harrassed or otherwise discriminated against could use the protection afforded under 30 CFR 830, Protection of Employees. OSM has rejected both these alternatives for two reasons; the Employee Protection provisions under Section 703 of the Act apply only to employees, and OSM believes the petition decision-making process, as with other decision-making processes under the Act, should be an open procedure.

Sections 764.13(c) and 769.13(b) list the requirements for terminating designations. Commenters suggested deleting the statement "not contained in the record of the proceeding in which the area was designated unsuitable.'' These commenters were concerned that this requirement would preclude introducing information which was misinterpreted or erroneous as reported in the record of the designation proceeding. OSM does not intend to preclude introducing new information when the original information was erroneous but believes it is not necessary to change the language of the final regulation to accomplish this result.

Other commenters suggested revising or deleting the language relating to nature or abundance of the protected resource. Several stated that this standard is inconsistent with the statute. They suggested that the nature or abundance of the protected resource or condition or other basis of the designation standard for the termination petitions should be deleted. A commenter suggested that the language be replaced with changes in reclamation technology or reclamation economics which have occurred since the date of the initial designation which now make reclamation technologically or economically feasible.

Instead of the nature or abundance language, another commenter suggested adding the phrase significant changes in the conditions found in Section 762.11 on which the designation was based. Another commenter was also concerned that the standard for termination was less than the standard for designation, thereby providing more avenues for termination than are set out in the statute because Section 522 does not speak of uniqueness of an area or abundance of a resource as criteria for designation. A commenter stated that this language might allow a termination even though lands were designated unsuitable due to infeasibility of reclamation which is an absolute standard not subject to any further tests.

OSM's intent in interpreting the statute concerning termination of designations was to provide a standard based on new information about the resource being protected or on new technology. Concerning the resource being protected under the discretionary criteria, OSM's intent was to allow reconsideration of an unsuitability designation if new information was found which could establish that the decision for the designation was based on incomplete or incorrect information. For example, if it were discovered that an area previously thought to be the only habitat in a State for a species of plant or animal was later found to be only one of many habitats for the species, that fact might render the designation incorrect because that decision would have been based on erroneous and outdated information. OSM recognizes that decisions based on the discretionary criteria of Section 522(a)(3) require weighing and balancing resource values; therefore, a change in the knowledge concerning abundance of the protected resource could properly lead to a reconsideration of a designation. {15002}OSM inadvertently applied the standard of a change in the nature or abundance of the resource to both the mandatory criterion of reclamation infeasibility and the discretionary T1 criteria. The only standard intended by OSM to apply to the mandatory criterion was a change in the technology or economics of reclamation. The language has been revised to accurately reflect OSM's intent. Regarding the resources or condition being protectable during and after mining, OSM did not intend to introduce a lesser standard than the Act. OSM has therefore revised the language by replacing "protectable'' with "affect'' to reflect OSM's original intent.

SECTION 764.15 Section 764.15(a)(2) requires the regulatory authority to determine whether any coal resources exist in the petitioned areas. A commenter suggested that the regulatory authority be required to identify recoverable resources and the extent of such resources. This commenter was concerned that some coal resources may not be recoverable and that the extent of the recoverable resource is important to match the potential for the particular area. This would impose a burden in excess of that necessary to determine if the State regulatory authority could reject the petition for absence of coal. Additionally, requiring the State regulatory authority to match the extent of the resource to the potential for the particular area requires judgments which should be left to the actual decision on the designation petition.

Another commenter suggested that requiring the regulatory authority to identify resources near the area under petition is ambiguous and imposes an undue burden on the State regulatory authorities in considering petitions. In objecting to the "or near'' language, the commenter pointed out that the coal resources near the petitioned area are not relevant to the petition. OSM agrees with the commenter because the State regulatory authority must concern itself with coal resources within the area specified in the petition and has no need to enlarge the area in question. If a petitioner wants to have the regulatory authority consider an area near the petitioned area, that area can and should be covered by a separate petition or by amending the first petition. Accordingly, OSM has deleted "or near'' from the final regulation.

Section 764.15(a)(7) states how petitions affect the permit process. OSM received many comments on this subsection. Some suggested that providing for any cut-off, at least until the permit is actually approved, was contrary to Section 510(b)(4) of the Act, which prevents approval of a permit application if an area is under study for designation. They further argued that establishing a cut-off would create a new exemption that would not be authorized by Section 522(a)(6) of the Act. These commenters objected to any limitation on filing petitions until the time when a permit is issued. Other commenters suggested deletion of this Section in its entirety, stating that the petition process can be used to harass permit applicants. Some commenters suggested that a conditional permit be issued until a decision is reached in the designation proceeding; these commenters apparently ignored the limitation of Section 510(b)(4).

Some commenters suggested other specific cut-off times or leaving the cut-off time to the discretion of the State regulatory authorities. Those who supported earlier cut-offs were largely concerned about the use of the petition process to harass permit applicants. Several who suggested later cut-offs argued that the public needed a longer period to find out about pending permit applications and to prepare a designation petition. Leaving the cut-off to the discretion of the State regulatory authorities was supported by those who wanted to allow for flexibility from State to State. OSM believes that some cut-off is necessary in order to facilitate an orderly permit process. Without a cut-off, petitions could indefinitely delay a final decision on a permit. The cut-off at the end of the public comment period is consistent with the permit approval or denial process established by Section 510 of the Act.

The final regulation makes it clear that petitions received after the close of the public comment period cannot prevent the regulatory authority from issuing a decision on a permit application. OSM believes that extending the opportunity to petition beyond the period for public comment on a permit application would effectively nullify the time limits for public comments on permit applications established in Section 513 of the Act. The petition process could be used to object to the permit after the statutory deadline for such objections. Close of the public comment period means at the close of any informal conference held under 30 CFR 786.14, or, if no conference is requested, at the close of the period for filing written comments and objections under 30 CFR 786.12 13.

Additionally, under this final regulation, the State regulatory authorities must continue to process petitions covering areas surrounding approved permit areas; they cannot reject a petition which covers both a permit area and other areas, but must processs the petition for those unpermitted areas. The only petitions that may be returned pursuant to this cut-off provision are those that relate to the same permit area as the permit application for which the public comment period is closed. Any later petitions which cover other portions of the same mine plan area must still be processed unless the additional areas involved are insignificant to the purposes of the petition.

Section 764.15(b) requires the State regulatory authorities to circulate copies of the petition to various parties including persons with an ownership interest of record. Some commenters suggested allowing three weeks for the State regulatory authority to circulate the petition. Others suggested requiring the State regulatory authorities to notify owners with a "legal'' interest instead of requiring the State regulatory authorities to circulate the petitions to people with an ownership interest of record in the property. OSM agrees that allowing the State regulatory authorities three weeks instead of two would provide the time needed to identify adequately all parties who should be notified. OSM has rejected the suggestion to provide for notification of persons with a legal interest rather than ownership interest because legal interest is broader than ownership interest and may include liens, easements and other interests that do not constitute ownership. Under the final regulation, the State regulatory authorities may use whatever means they find satisfactory to determine an ownership interest of record in the property. State regulatory authorities do not necessarily have to do title searches to identify these owners.

Other commenters suggested deleting the requirement to circulate copies of the petition. Deleting this paragraph would require persons, organizations or agencies having an interest in petition actions continually to monitor State hearing notices on such actions and to request copies of petitions of interest to them. Deleting this circulation provision would be contradictory to Sections 102(b) and 102(i) of the Act, which require that interested parties be notified and involved in the administration and enforcement of the Act and regulations. For these reasons OSM has rejected this suggestion. Another commenter suggested extending the time period for notifying the public of receipt of the petition to five weeks. OSM has rejected this suggestion because this notice is not a heavy burden and it should be balanced with the countervailing concern of making rapid decisions and transmitting those results to the public quickly.

Section 764.15(c) states that, until three days before the State regulatory authority holds a hearing under Section 764.17, any person may intervene in the process. Some commenters suggested shortening the time for intevenors until 10 days before the hearing to conform with the draft regulations for Federal lands. OSM has changed the Federal lands regulations, however, to permit intervenors to enter those proceedings up to three days before the hearing. The longer period is conducive to greater public involvement.

{15003}Section 764.15(d) requires the State regulatory authority to compile and maintain a record relating to each petition. The record must be kept at the main office as well as a central location of the county or multicounty area of the petitioned land. OSM received comments suggesting deletion of the requirement that the record be kept in more than one location. If the commenters' suggestions were adopted, members of the public living near the petitioned area would have to bear a greater financial burden of travelling to the main office of the regulatory authority to obtain information regarding the petitions. It is more equitable to have these costs borne by the regulatory authority in the interest of greater participation by the public than to have members of the public individually bear these costs. Another comment strongly supported these provisions as proposed. OSM believes that the final regulation gives sufficient discretion to the regulatory authority to choose a location in the county or multicounty area affected by the petition other than the geographic center. If a centrally located community does not have the facilities required, the regulatory authority may choose the county seat or another community which has the required facilities. OSM believes that the public participation provisions of the Act are directed at making significant and meaningful participation by the public as easy as possible. The final regulation implements this policy.

SECTION 764.17 Section 764.17 provides the requirements for hearings on petitions. Nearly every aspect of this section received comment. Many commenters recommended that the time period for holding a public hearing on a petition be shortened from 10 months. Recommended alternatives ranged from 45 days to 6 months. Commenters were concerned that the petition process not be used as a tactic to delay mining. OSM agrees that the time between filing of complete petitions and the public hearing should be minimized; however, the Act provides for a 10 month period if necessary and there may be situations where the maximum time period is necessary. This time period is not intended to serve as an average. Public notice requirements negate any time periods shorter than about 2 months, allowing the time necessary to prepare public notices. The volume of petitions received at one time, the complexity of the issues involved and staff capability may require that hearings be scheduled over the maximum time available. Combining hearings could expedite this process.

A few commenters suggested that this entire section be deleted. OSM believes that the Act specifically requires a public hearing unless all petitioners and intervenors stipulate agreement before the hearing. Therefore, OSM has rejected this suggestion.

Some commenters suggested deleting the requirement for verbatim transcripts of public hearings. They further suggested that, if the requirement is not deleted, the language should be clarified to indicate clearly that the regulatory authority is responsible for preparation of the transcripts. Some commenters suggested that tape recordings be allowed in lieu of a verbatim transcript and some commenters stated that verbatim transcripts are costly and suggested that tape recordings are adequate. In OSM's view, the public hearing is intended to provide the regulatory authority with information that will assist it in reaching a decision on the petition. A record of the hearing is necessary for review by the regulatory authority, petitioners and the general public. Verbatim transcripts can be reproduced easily and made available as necessary. OSM recognizes the significant cost involved in preparation of verbatim transcripts but also notes that the regulatory authority could receive funds under an OSM grant to cover part of these costs. The proposed regulations explicitly stated that the regulatory authority shall make a verbatim transcript of the hearing. Thus, no change was necessary for the final regulations.

Sections 764.17(a) and 769.17 address the hearing procedures. The proposed regulations specified that the hearing was to be a legislative, fact-finding hearing with no cross-examination or sworn testimony. OSM received numerous comments concerning the degree of formality required for the hearing. In response to the comments, OSM has considered the alternatives presented below.

A number of commenters urged that OSM provide for these hearings to be adjudicatory and require such formalities as sworn testimony, cross-examination and an administrative law judge as presiding officer. They presented a variety of arguments in favor of this approach: (1) This procedure is fairer and better suited to resolving factual disputes; (2) formalities are necessary to provide the landowner with due process if the final decision is in favor of designation, thus depriving him or her of some of the uses of the property; (3) more facts will be obtained through this procedure; (4) a better record will be compiled to allow for objective judicial review; (5) designation is more like a condemnation proceeding than a zoning hearing and even zoning cases are sometimes quasi-judicial. Some commenters favored an adversarial hearing because they believe that a designation of unsuitabil- ity is a taking of property without due compensation. Several commenters claimed that an adjudicatory hearing is required when there are questions affecting property, leading to a possible taking. The commenters compared designation decisions to zoning decisions and stated that zoning decisions are often made through adversary proceedings. The commenters contended that an adversary hearing would develop a better, more complete record because cross-examination of witnesses could elicit more information than would be obtained through mere presentations.

A two-tiered hearing system with first an informal conference, then an adversary hearing was also suggested. Commenters who favored this two-tiered process observed that there are pros and cons to both types of hearings. They suggested an informal conference, followed by an adjudicatory hearing held only if the preliminary decision were to designate the lands unsuitable, patterned after the permit application process. Again, these commenters believed that an adversarial hearing was necessary before making a decision affecting the use of property.

A few commenters suggested that the hearings be kept informal, but that there should be an opportunity for the State regulatory authority and the audience to ask questions of the speakers. In addition to the advantages discussed above, this procedure would allow for more extensive facts to be obtained without the formalities of sworn testimony and cross-examination and without incurring the expense of assistance by attorneys. OSM encourages such open procedures, but has left the decision on whether to include them to the discretion of the regulatory authority, which can best determine the specific requirements of an informal hearing according to its own needs and procedures.

Several commenters wanted the States to be given discretion to choose which type of hearing would be held. They believed that the States should have flexibility to adopt the hearing process to their other requirements of administrative law. OSM has rejected this suggestion in order to provide for consistency nationwide.

A commenter preferred adjudicatory hearings but suggested a hybrid procedure, combining the formality of an Administrative Law Judge (ALJ) presiding, with a choice for witnesses either to testify or only submit written evidence, but those who testify would be subject to cross-examination. Written evidence would be given less weight. Once the petition triggers the process, the State regulatory authority would provide all data to support designation under any of the discretionary criteria and would assist the petitioner in presenting his case. Other parties could intervene and the ALJ would then compile and certify the hearing record to the State regulatory authority for a final decision, which would be written findings of fact and conclusions of law. In this manner, it would be in a proper form for judicial review. This hybrid was apparently designed to address OSM's concerns about reducing formality and expense and ensuring that the State regulatory authority itself makes the final designation decision. OSM has rejected this suggestion in order not to place an undue burden on petitioners.

{15004}OSM has chosen not to adopt an adjudicatory hearing procedure for the following reasons. First, Section 522(c) does not require an adjudicatory hearing. OSM believes that an informal hearing meets the requirements of the Act. Second, because cross-examination of witnesses may be used to discredit them and their testimony, OSM envisions that cross-examination could easily be used to intimidate witnesses whose own experience might provide valuable information for the record. Where, for example, mining has allegedly caused flooding, the testimony of people who have lived in the area before flooding and after flooding would provide valuable testimony for the record. Without this kind of testimony in the record, it would be incomplete. Thus, OSM believes that the hearing should provide an opportunity for the regulatory authority to hear expert opinion as well as the experience of people whose lives are directly affected by mining.

Commenters who wanted an adjudicatory hearing hinged their arguments on a belief that a designation is a taking for which compensation must be paid. Under the recent Supreme Court decision, Penn Central v. New York City , 438 U.S. 104 (1978), there is no taking for which compensation must be paid unless the property owner has a reasonable expectation of being able to use his property a certain way. Thus, OSM believes that there is no taking for which compensation must be paid unless an operator already has a permit for that area which was obtained as of August 3, 1977, or needs the coal to continue an operation which was permitted before that date. Because coal mining has been a permitted activity under various State and Federal statutes for many years and because it is illegal to mine without a permit, an owner of coal cannot have a reasonable expectation to mine it without having a permit. Further, while certain permits may have been routinely obtained in the past, the Act makes it very clear that mining will not be allowed where all the performance standards cannot be met. Thus, at least since the date of enactment of the Act, it has certainly not been reasonable for operators to expect automatic approval of a permit.

OSM has also rejected suggestions of the commenters that the form of the hearing be changed; the final regulations provide for an informal, fact-finding hearing without cross-examination of witnesses or sworn testimony. OSM recognizes, however, that within the framework of an informal hearing, States may apply their own applicable procedures for hearings on actions affecting property including appropriate judicial review.

Sections 764.17(b) (e) set forth minimum requirements for public hearings conducted pursuant to Section 522(a) of the Act. To comply with Section 522 of the Act, a State must demonstrate it has developed or is developing a process which includes "(D) proper notice, opportunities for public participation including a public hearing prior to making any designation or redesignation, pursuant to this Section.'' In framing this section of the regulations, OSM attempted to set forth requirements that were not overburdensome and followed normal hearing and notice procedures. One commenter said that the proposed language does not assure notification of the coal lease owner and permit applicant, and suggested more specific language. The regulation requires notice to any person with an ownership interest or other interest known to the regulatory authority. A person holding a lease would qualify as a person with an ownership interest; a permit applicant would certainly be known to the regulatory authority and would receive notice. Thus, OSM believes that the existing language is clear and covers all of the regulatory authority's responsibilities to give notice to persons, organizations, or agencies having ownership, mineral or otherwise, including the coal lease owner and permit applicant.

Some commenters urged that the notice requirements of Sections 764.17 (b) and (c) be expanded to require maintenance of a public participation list and to require radio announcements to inform the general public of upcoming hearings. OSM believes that the public notice requirements set forth in Sections 764.17 (b) and (c) provide a reasonable opportunity for all interested parties to become informed of the proceeding; however, regulatory authorities may increase notice requirements for their own programs such as preparing press releases and published schedules. OSM supports these efforts but believes additional requirements in the regulations would be unduly burdensome.

Another comment suggested that copies of decisions on petitions be provided to all parties notified under Section 764.17(b). Requirements related to decisions on petitions are covered under Section 764.19. The regulation requires sending the decision to the petitioner, every other party to the proceeding and the Regional Director. OSM believes that the regulations under Section 764.19 are sufficiently broad to assure that all those with an interest will be provided with a copy of that decision.

A few commenters suggested that the newspaper advertisement requirement of Section 764.17(c) is sufficient without Section 764.17(b), which requires notice to other governmental agencies, the petitioner, intervenors and persons with an ownership interest or other interest known to the regulatory authority. The suggestion to delete certified mailing requirements was also made. Paragraphs (b) and (c) separate those individuals, agencies and groups that most likely have an interest in the proceedings from those whose interest is unknown at the time a decision to hold a public hearing is reached. For this reason, OSM believes that precautions such as sending notices by certified mail to those listed in Section 764.17(b) is required. Therefore, OSM has not changed this requirement.

Other commenters suggested that the requirement to notify "any other person known to the authority to have an ownership interest or any other interest in the area covered by the petition,'' was nebulous and overly broad. Groups or individuals without ownership interest in the property may make their interests known to the regulatory authority and they should then be notified of the hearing. The key is that their interest must be made known to the regulatory authority. The final regulation does not require the regulatory authority to seek out unidentified individuals or groups that may have some interest.

Commenters also suggested that the time limits in paragraphs (b) and (e) be increased from 30 and 15 days to 60 days and 30 days, respectively. They claimed that additional time would be needed to prepare testimony. OSM has decided to retain the same language of (b), (c) and (e) for the final regulations but extended the 15 day limit of (e) to 30 days and added language to clarify that persons with other interests be notified if known to the regulatory authority. Some commenters suggested deletion of Sections 764.17(b), (c) and (e). OSM has rejected this suggestion because it could allow a regulatory authority to disregard the provisions of the Act requiring proper notice.

{15005}Several commenters suggested combining the newspaper advertisements provided in Section 764.17(c) into three consecutive ads during the three weeks immediately prior to the hearing. They maintained that this requirement is simpler and easier for the regulatory authorities to meet. OSM has rejected separating the advertisements in order to ensure that the newspaper advertisements appear at times when most persons are likely to see them.

Some commenters suggested deleting the requirement for consent of all petitioners and intervenors to consolidate hearings on petitioned areas in the same locale. They believed that the consent requirement should be at the discretion of the regulatory authority and not a mandatory requirement. OSM agrees that the regulatory authority should be allowed the flexibility to consolidate the hearings and has changed the final regulation accordingly.

Some commenters suggested that the preliminary statement required by the proposed regulations is contrary to Section 522.(d) of the Act which only requires preparation of the detailed statement prior to an unsuitability designation, not prior to the hearing. Another commenter suggested that the State regulatory authority should not be required to go to the expense of a detailed statement until a substantial case has been made for the designation of land unsuitable. OSM has accepted this suggestion and changed the final regulation to require preparation of one statement after the public hearing.

A commenter believed that the regulations should specify the areas to be analyzed for economic impacts. The point was raised that the resources from some coal fields can affect both world and sub-country-level markets; thus, the demand and supply impacts of a designation could require extensive and costly analysis and modelling of international markets unless the regulations are specific as to the level of analysis required. OSM agrees that economic models could be burdensome and expensive. According to the legislative history (Senate Report No. 95 128, p. 94 (1977)), the regulatory authority is required to draw its data only from existing and available information. In order to clarify the responsibilities of the regulatory authorities, OSM has added this phrase to the final regulation.

SECTION 764.19 Section 764.19 sets forth procedures to be followed by the regulatory authority in deciding on a petition to designate lands unsuitable for mining. A commenter suggested that the listing of items to be considered during the decisionmaking process be expanded to include a fifth item, all information submitted at the public hearing. OSM believes this item would be unnecessary because this information would be part of the information received during the public comment period which includes the hearing and would thus be considered in the decisionmaking process.

Another commenter took exception to the language included in the preamble to the draft regulations which stated, "The drafters believe there is a burden on the State to establish a measure of uniqueness for areas covered by petitions under the discretionary criteria of Section 522(a)(3).'' The commenter viewed this statement as an additional showing to be made before an area could be designated unsuitable. OSM does not intend to make a State show that every area is unique before it can be designated unsuitable. Only in cases where a reason for designation would be that the area in question is an important area for certain flora or fauna or a rare area for other reasons would it make sense to establish a measure of uniqueness. It would not be applicable in cases of natural hazards lands or where mining would be incompatible with land use plans. Additionally, it would not be applicable where reclamation was infeasible for technological or economic reasons.

Several commenters suggested that the time period for a written decision on a petition to designate lands unsuitable for mining be reduced from 12 months in those cases where no public hearing is held. OSM has not adopted this suggestion because of potential scheduling problems. If the time frames were reduced, there might not be enough time to prepare an adequate coal resource statement or gather enough other material on which to base a sound decision. The final regulation does not require the regulatory authority to wait 12 months to make a decision, but states that a decision must be made within 12 months after receipt of the complete petition.

Some commenters suggested deleting all time frame requirements. Section 522(c) specifies that a decision must be reached within 60 days of the hearing, but it is silent on time periods in those cases where no public hearing is held. Because a public hearing must be held within 10 months after receipt of a petition, OSM believes it follows that the maximum time for issuance of a decision is 12 months.

A commenter suggested deletion of paragraph (c) providing for judicial review. The commenter believed that this paragraph is inconsistent with Section 526(e) of the Act. Inasmuch as Section 522(c) establishes a definite time period for the decisionmaking process (60 days after completion of a public hearing), OSM does not believe that this paragraph is inconsistent with the Act. Where failure of the State regulatory authority to act would constitute a denial of a right, there should be an appropriate judicial remedy which this section provides.

A commenter suggested that the conditions of Section 769.18(b) should apply to State programs. No change in the final regulations is necessary due to the fact that Section 764.19(b) already applies the conditions of Section 769.18(b) to State programs.

SECTION 764.21 Section 764.21 describes data base and inventory system requirements. A commenter suggested that an agency other than the regulatory authority be allowed to develop and maintain the data base and inventory system, while the regulatory authority remains the actual decision-making body. Under Subchapter C, each State must have a central regulatory authority but may delegate certain responsibilities to other agencies provided there is a specific agreement between the agencies which delineates the functions being delegated. In the case of designations, OSM believes that the data base and inventory system could properly be delegated to another agency, but the decision-making responsibility must remain with the central regulatory authority.

Another commenter suggested that this section be revised to follow the language of the Act exactly; this would make it clear that the inventory system and data base are not created after petitions for designation are received. The final regulation makes clear that the regulatory authority must gather data not only in response to petitions, but also in anticipation of petitions.

Other commenters suggested that data compiled by State fish and wildlife agencies should be made a mandatory source for the data base and inventory system. The intent of the regulations is to specify that certain known sources be used, while leaving the regulatory authority free to add information from other sources if it chooses to do so in order to give the states flexibility and prevent duplication of effort. If the State regulatory agency has access to information necessary to make determinations on unsuitability of lands for mining from other state agencies or other sources, OSM believes that the State need not duplicate that information in the data base and inventory system required under this section of the regulations. Requiring the inclusion of data from other sources, whether or not those agencies actually have the information, could place an unnecessary burden on the States. OSM believes the states need flexibility in designing the systems to fit the capability available to them and to best serve their purposes.

{15006}A commenter suggested that the regulations should specify a system for updating the data base. The commenter believed that, without procedures for updating the system, important new information which could affect designations may inadvertently be left out of the system, causing the issuance of permits for areas that should be designated as unsuitable lands. OSM believes that this concern is adequately covered by Section 764.21(c) and has not changed the final regulation.

I11A commenter suggested that the statutory language_objective decisions based upon competent and scientifically sound data and other relevant information_is too general. This commenter suggested that OSM attempt to elaborate further a methodology or specific planning process. Because the States have such varied needs, OSM believes that they should be left a large measure of discretion regarding the data base and inventory system. Therefore, this suggestion has been rejected.

Another commenter suggested that the States should be able to require that the petitioners supply the data upon which the designations would be based. Section 522(a)(4)(B) clearly requires that the State maintain a data base and inventory system. A State must also demonstrate that it has developed or is developing a data base and inventory system. For further discussion, the reader is referred to the preamble for Part 764 concerning burden of proof. A commenter suggested that the data base and inventory system is too expensive and that the information required may not be available. This commenter apparently ignored Section 522(a)(4)(B) of the Act which requires that such a system be established. The sources of information, such as information from the U.S. Fish and Wildlife Service and the State Historic Preservation Officer, are to be included only when they are available. Another commenter stated that despite the wording of the Act, which says a State must demonstrate it has developed or is developing a process, there is legislative history to support the view that the data base and inventory system should be in place before a state program is approved. OSM has not accepted this suggestion because OSM believes that the Act is explicit on this point. Moreover, OSM could not find any legislative history to support the commenter's contention, and the commenter provided none.

SECTION 764.23 Section 764.23 describes public information requirements. Commenters suggested that the regulatory authority should be required to hire or assign staff to assist petitioners to retrieve necessary information to complete a petition. OSM believes the requirement that the information be available for public inspection and copying includes putting the information in a form that can be used by the general public. If sophisticated date storage and retrieval systems are utilized by the regulatory authority, it follows that some assistance to the public for use of the system will be needed. However, requiring actual research assistance to petitioners is beyond the intent of the Act; therefore, OSM has rejected this suggestion.

Some commenters also suggested that the regulatory authority undertake workshops about the designation process and criteria. OSM has rejected these comments because such workshops are beyond the requirements of the Act. The regulatory authority might find such public information tools helpful in the designation process, however, and may use them if it wishes.

Additional commenters suggested that the wording of Section 764.23(a) be changed to exclude information of a confidential or proprietary nature. They pointed out that those portions of the date base which identify the exact location of endangered species or archaeological finds may lead to the destruction of these resources. A commenter cited 16 U.S.C. 470(a)(4) for an analogous exception. That reference states: "(4) to withhold from disclosure to the public, information relating to the location of sites or objects listed on the National Register whenever he determines that the disclosure of specific information would create a risk of destruction or harm to such sites or objects.'' OSM recognizes the potential for abuse of any data system. Because much information of this nature will be obtained from other agencies, any protection from similar State or Federal laws would be applied before the information were provided to the regulatory authority. State and Federal agencies should be told by the regulatory authority that all information gathered under OSM funding and included in the data base must be available for public inspection.

A commenter suggested that Section 764.23 be deleted entirely. OSM has rejected this suggestion because the Act indicates that opportunities for public participation must be provided in the designation process. OSM believes that meaningful public participation is enhanced if the public is provided access to inventory and technical data developed or assembled by the regulatory authority. A commenter suggested restricting the persons to whom information on the petition process is made available to those having an interest which is or may be adversely affected. OSM has rejected this suggestion because requiring the regulatory authority to give information only to those "having an interest which is or may be adversely affected'' would force the regulatory authority to make a premature determination on standing before a petition is ever received. The existence of an adversely affected interest should be determined by a State regulatory authority after receipt of a petition, not before. Further, OSM believes that the intent of the Act is to make all information relating to the petition process, except that exempt under the Freedom of Information Act, available to the public.

OSM received several comments suggesting deletion of the requirement of Section 764.23(c) to prepare a brochure because the Act does not specifically mention a brochure and because the procedures are outlined in detail in the Federal regulations and will also be included in the State statute and regulations. In response to these comments, OSM has deleted the brochure requirement, leaving preparation of any brochure to the discretion of the States; but the final regulation still requires the States to provide information to the public regarding the petition procedures.

SECTION 764.25 Section 764.25 describes regulatory authority responsibility for implementing the petition process. In an internal edit of the regulations, Section 764.25(a) and (b) were deleted. These Sections were replaced by a general section stating that permits cannot be issued inconsistently with the designation process. Several commenters suggested insertion of the phrase "in an administrative proceeding'' into Section 764.25(b). They pointed out that this phrase was needed so that the language follows Section 510(b)(4) of the Act. OSM has rejected this suggestion because Section 764.25(a) and (b) as proposed, were deleted from the final regulations.

A commenter suggested inserting a reference to pending designation proceedings. This commenter apparently ignored the cut-off requirement in Section 764.15(a)(7). Thus, OSM has rejected this suggestion because it would not add anything to the regulations.

OSM also received comments suggesting that a completed petition be filed before approval of a pending permit can be delayed. OSM has rejected this suggestion because it would be contrary to Section 510(b)(4) of the Act which requires only that a designation proceeding be commenced, which occurs as soon as a petition is filed, not once that State regulatory authority has determined that a petition is complete.

{15007}A few commenters suggested that State regulatory authorities be able to charge a reasonable cost to the public for copies of the maps of designated areas. They believed that this provision was necessary to allow the State regulatory authorities to recover their costs for making the maps available to the public. OSM believes that State regulatory authorities have discretion under the final language to do so if they desire to recover their printing costs.

Several commenters suggested that broader categories of information should be kept confidential. One wanted to protect information on valid existing rights and substantial legal and financial commitments. Another believed that information on coal seam location, thickness and pitch should be confidential. Neither provided any further explanation beyond assertions that this information should not be made public. OSM has rejected this suggestion because it ignores the provisions of Sections 507(b)(17) and 508(a)(12) of the Act which limit the confidentiality of permit application information to analysis of the chemical and physical properties of the coal.

SUBCHAPTER F -- AREAS UNSUITABLE FOR MINING, 30 CFR PART 765 -- DESIGNATING LANDS UNSUITABLE FOR SURFACE COAL MINING OPERATIONS UNDER A FEDERAL PROGRAM FOR A STATE SECTION 765.13 Section 765.13(b) requires the Secretary to implement a process for designating lands unsuitable immediately when failure of a State to implement or maintain a process for designating lands unsuitable is a reason for failure of a State program. Some commenters suggested deleting this subsection. OSM has rejected this suggestion because, although Section 504(a) of the Act provides that implementation of Section 522(a), (c) and (d) shall be delayed for one year after a Federal program is implemented, that provision of the Act does not address the situation where the failure of a State designation program is the reason for implementing the Federal program. Rather, it envisions that a State designation program would already be in place and should not be dismantled by the Federal program. But, where there is no adequate State designation program, it is essential that a Federal designation program be implemented immediately in order to satisfy the mandate of Section 504 of the Act that all aspects of the permanent program be fully in place by 34 months after enactment.

Another commenter suggested that OSM should clarify whether failure to implement the designation process should result in implementation of a partial program. OSM has not accepted this suggestion because specifying whether a partial or complete Federal program is needed predetermines the results of the evidence presented at a hearing for a Federal program under Part 736. Evaluation of other parts of the State program will help determine whether to implement a partial or a complete Federal program. Section 765.3 of the proposed regulations has been entirely deleted because it repeated materials already covered in Part 736.

SUBCHAPTER F -- AREAS UNSUITABLE FOR MINING, 30 CFR PART 769 -- PETITION PROCESS FOR DESIGNATION OF FEDERAL LANDS AS UNSUITABLE FOR ALL OR CERTAIN TYPES OF SURFACE COAL MINING OPERATIONS AND FOR TERMINATION OF PREVIOUS DESIGNATIONS This Part sets out the provisions for implementing a process for responding to petitions on Federal lands. Because this Part parallels, in most respects, Part 764, the final regulations for Part 769 have been revised in the same manner as those in Part 764, and the reasons described in the preamble to that part are also applicable here. Several commenters suggested deleting this entire part. They believed that Congress did not intend the petition process to apply to Federal lands. They stated that Section 522(c) of the Act provides for petitions to the regulatory authority, a term which they believed does not include the Secretary. Further, they quoted a Conference Report that only mentions State regulatory programs in connection with a petition process. Under the Act, the only explicit reference to the Secretary and the petition process is when the Secretary promulgates a Federal program for state lands. Additionally, they believed that establishing a petition process would conflict with the coordination of the Department of the Interior's leasing policy and the Department of Energy's energy policies.

OSM has rejected this suggestion. OSM believes that Congress intended there to be a petition process on Federal lands. This process parallels explicitly established procedures under Section 601 of the Act which requires a petition process and a review process working simultaneously. Additionally, Section 523 of the Act requires that "the Federal lands program shall, at a minimum, incorporate all of the requirements of the Act . . .'' OSM believes that, because the petition process is one of the requirements of the Act, the Federal lands program must include a petition process. Moreover, the petition process is a valid means of increasing public participation as required under Section 102 of the Act. Section 201(c)(13) of the Act allows the Secretary, acting through the Office, to perform such other duties as may be provided by law and relate to the purposes of this Act, thereby providing authority for the Secretary to establish a petition process for Federal lands in order to provide increased public participation.

SECTION 769.7 Section 769.7 requires the Regional Director to maintain a map of areas designated unsuitable, to make information available to the public and to make designation decisions consistent with mine plan approvals. OSM received comments suggesting that only petitions for an area received before permit applications are received for the same area should be accepted. OSM has rejected this suggestion because it would be inconsistent with Section 510(b)(4) of the Act, which makes it clear that Congress wanted the petition procedure to continue after permit applications have been received.

Another commenter suggested that a permit applicant not be allowed to apply for a permit which includes any areas designated as unsuitable or for which a designation proceeding is pending. OSM has rejected this suggestion because the inclusion of this provision would place an unreasonable constraint on initiation of the permitting procedure. If a designation petition can be considered after a permit application has been received, then permit applications should also be considered even after a petition has been received. It would be unfair to operators to prevent them from filing permit applications until a designation is made; this could delay the permit process unreasonably. Thus, permit applications may be considered at any time, but permit determinations cannot precede designation decisions.

OSM has modified the regulations to delete redundant requirements. As part of this internal edit, (a) and (b) of Section 769.7 were deleted. To replace them, OSM has added a new 769.14(i) which makes it clear that a petition may be filed after a permit application is received but will not be considered if filed after the close of the public comment period. OSM also has deleted any reference to confidentiality of information because that is covered elsewhere in the regulations.

SECTION 769.13 Section 769.13 specifies the requirements for the contents of petitions. A few commenters suggested that these requirements be amended to require that the petitioner show the effects of mining to be substantial, believing that the law should take into account de minimus effects. OSM has rejected these suggestions because adopting the commenters' suggestions would preempt the decision on a petition. It is the regulatory authority, not the petitioner, who decides if mining would substantially or significantly affect an area. OSM changed Section 769.13 to cross-reference Sections 764.13 (b) and (c) to assure that Federal and State program requirements are identical, and to shorten the length of the regulations.

SECTION 769.14 Section 769.14 deals with the initial processing, record keeping, and notification requirements for petitions on Federal lands. A commenter suggested that there be a cutoff period for considering petitions because repeatedly filed petitions could be used to delay or prevent the issuance of a mining plan. The commenter pointed out the fact that a cutoff provision exists for the designation process under State programs but not for the Federal lands program. OSM has revised the Federal program regulations to be consistent with the State program regulations and included a cutoff provision in Section 769.14 but with slightly different language. Part 776 concerning permits has also been revised to ensure that a complete permit application will be received before advertisement and receipt of public comment on the permit application. The revised language of this subsection therefore specifies that the permit application will be complete before the comment period begins.

Several commenters suggested that consultation with the Geological Survey be required prior to a determination of whether coal deposits exist in or near the petitioned area. They maintained that it is the responsibility of the USGS to assess mineral potential on Federal lands. OSM believes that consultation with USGS is provided for in the coal leasing regulations and, because it is set forth in Departmental procedures, it need not be reiterated here. OSM has inserted a new paragraph 769.14(d) to correspond with 764.15(a)(5) concerning frivolous petitions.

A commenter suggested providing a mechanism for petitioners to discover what evidence had been used in making a determination on a rejected petition. OSM agrees and has modified the language to provide a petitioner with such a mechanism. The regulation, as now written, specifies how the Regional Director will respond. If there is a dispute over what constitutes new evidence, the petitioner should raise the question in the context of a specific case.

Some commenters suggested that OSM delete Section 769.14(f) because they believed that it improperly uses the vague term "consider'' and improperly interjects existing land use plans into the designation process. Another commenter suggested that a copy of the land use plans be sent to the petitioner. The commenter apparently was concerned that a petitioner and the Regional Director would have different opinions on the adequacy of the consideration given a possible designation in the land use planning process. The final regulation requires that the surface managing agency only recommended to the Regional Director whether or not the land use plan adequately consider whether the land is unsuitable for mining.

Other commenters believed that subsection (f) is in conflict with Section 523(a) which requires the Secretary to be responsible for designation of Federal lands as unsuitable for mining in accordance with Section 522(b). They believed that, by utilizing existing land use plans, the Secretary is abrogating his responsibility. OSM has modified (f) to make it consistent with the July 3, 1978 memorandum between the Assistant Secretaries for Energy and Minerals and Land and Water outlining the petition process. This memorandum indicates that, upon receipt of a petition for a certain area, OSM will forward it to BLM which will expedite the Federal coal lands review process for that particular area. If that review results in a conclusion that satisfies the petitioner, OSM will inform the petitioner, asking if the petitioner wishes to withdraw his/her request for a hearing. If the request is not withdrawn, OSM will hold a hearing. Where the OSM decision is in conflict with BLM's recommendation, the memorandum states that the petition will be referred to appropriate Washington offices for resolution. Where BLM had already made a determination under its Federal coal lands review procedures, the same procedures regarding the hearing and decision would be followed. SECTION 769.17 Section 769.17(c) allows consolidation of a petition hearing and a mine plan approval hearing with the consent of the petitioners and intervenors. A commenter suggested that consolidation of these hearings might prejudice the proceeding and turn the designation process into a highly confrontational dispute. OSM has rejected this comment because consolidation of these hearings would eliminate duplication of effort which would be beneficial in many instances. The Regional Director may only combine hearings with consent of all petitioners and intervenors.

SECTION 769.18 Section 769.18 provides procedures on making decisions concerning petitions on Federal lands. A commenter suggested providing a mechanism for the Regional Directors to defer their petition decisions to surface managing agencies for some Federal lands. OSM has not followed this suggestion because the agreement reached with BLM concerning the division of functions and responsibilities under the Act provides for the recommendation of the surface management agency and will give BLM adequate input into the decisionmaking process. Additionally, where BLM and OSM disagree on a particular petition, that petition will be forwarded to the Secretary for resolution and final decision.