Addendum to Federal Register notices already sent 1981: 46 FR 47720 (September 29, 1981) 30 CFR Parts 716 and 785 Surface Coal Mining and Reclamation Operations; Permanent Regulatory Program; Prime Farmland Grandfather Rules 46 FR 6942 (January 22, 1981) 43 CFR Part 4 Special Rules Applicable to Surface Coal Mining Hearings and Appeals FEDERAL REGISTER: 46 FR 47720 (September 29, 1981) DEPARTMENT OF THE INTERIOR AGENCY: Office of Surface Mining Reclamation and Enforcement 30 CFR Parts 716 and 785 Surface Coal Mining and Reclamation Operations; Permanent Regulatory Program; Prime Farmland Grandfather Rules ACTION: Amendments to final rule. SUMMARY: OSM is revising the Prime Farmland Grandfather Rules as published on January 23, 1981, 46 FR 7894, the effective dates of which were postponed in Federal Register notices of February 4, 1981 (46 FR 10707), March 23, 1981 (46 FR 18023), April 3, 1981 (46 FR 20211), April 29, 1981 (46 FR 23924) June 15, 1981 (46 FR 31258), and August 14, 1981 (46 FR 41046), and the revisions include removing the cut-off date of the exemption. This action is being taken after OSM solicited and received voluminous comments from the public on whether the rules should become effective, modified, or suspended indefinitely. Accordingly, the rules which take effect today exempt certain permits and revisions or renewals of those permits from both the special prime farmland permits application and performance standards of the Surface Mining Control and Reclamation Act. EFFECTIVE DATES: The amendments to Secs. 716.7 and 785.17 are effective on September 29, 1981. FOR FURTHER INFORMATION CONTACT: LeRoy deMoulin, Soil Scientist, Office of Surface Mining, Department of the Interior, 1951 Constitution Avenue, N.W., Washington, D.C. 20240, Phone (202) 343-5954. SUPPLEMENTARY INFORMATION: BACKGROUND The statutory basis, legislative history and rulemaking history of the prime farmland grandfather rules appeared in the Notice of Proposed Rules (45 FR 25992-95, April 16, 1980) and Notice of Final Rules (46 FR 7894-7900, January 23, 1981). That material will not be repeated here, but is incorporated and made a part hereof unless otherwise stated in this notice. RELATED LITIGATION Several parties filed lawsuits after publication of the rules on January 23, 1981. These cases are in the early stages of litigation and are entitled: National Coal Association and American Mining Congress v. Watt, et al., Civ. No. 81- 0693 (D.D.C.); Peabody Coal Company v. Watt, et al., Civ. No. 81-0645 (D.D.C.); Illinois Department of Mines and Minerals v. U.S. Department of the Interior, et al., Civ. No. 81-0708 (D.D.C.). ANALYSIS OF COMMENTS The final regulations published on January 23, 1981, exempted all lands included in pre-August 3, 1977, permits and all revisions or renewals of those permits. Continuations of pre-existing surface coal mining operations would be exempt where the lands are: (1) an extension of a continuous mining pit or pits; (2) part of a single permitted operation; and (3) part of a continuous recoverable coal seam. The regulations also required that the permittee demonstrate that he or she had a pre-August 3, 1977, legal right to mine the exempted lands, and established a cut- off date of August 3, 1982. Numerous public comments were received on the issues of whether to modify, issue or suspend the rules indefinitely pending the outcome of further rulemaking. These comments are summarized and responded to in the following paragraphs. GENERAL COMMENTS Several commenters expressed strong objection to the January 23, 1981, grandfather rule, stating that the rule will interfere with primacy and that the objectives of the Surface Mining Act will be better served by an indefinite postponement or extension of the January 23, 1981 rule followed by full notice and comment in a new rulemaking. Most of these commenters attached copies of their comments submitted at earlier stages of OSM's permanent program rulemaking on prime farmland and requested that those comments be reconsidered by OSM. Some commenters stated their belief that OSM had not seriously considered the prior comments in developing the grandfather rules. Other commenters merely expressed strong objection without specifying any details. Several commenters also expressed strong objection to further postponement of the rule stating that there are no compelling reasons for delaying the protection afforded prime farmland under the January 23, 1981 regulations. These commenters stated that the productivity of thousands of acres of prime farmland will be in jeopardy because no prior rules remain in effect; that allowing the January 23, 1981 regulation to take effect would not interfere with primacy; and that regulations on this subject are needed because Section 510 of the Surface Mining Act is sufficiently vague to require clarification. Some commenters stated that they believed that OSM's justification for requesting notice and comment amounted to a prejudgment because the agency had already decided to suspend the January 23, 1981 rule and have a new rulemaking on prime farmland grandfather issues. Among those commenters who opposed further delay in implementing the January 23, 1981 regulations were several Members of Congress and the Secretary of the Department of Agriculture. OSM rejects the assertion that it has prejudged this issue by assuming that the January 23, 1981 regulations would be suspended after a perfunctory notice and comment period. This may have been the impression left by the March 23, 1981 Federal Register, "Notice of Suspension of Certain Rules in 30 CFR Chapter VII." (46 FR 17191-92.) As noted in the later Federal Register notice, the March 23, 1981 notice was published in error and was cancelled and superseded by the April 3, 1981 notice. 46 FR 20211, April 3, 1981. OSM has carefully considered all public comments received, including those comments filed in previous rulemakings which were incorporated in the public's comments filed in this rulemaking. The comments received on the issues of "pre-existing permits," "renewals and revisions of pre-existing permits," "existing surface coal mining operations" and definitions of "continuous mining pit" and "continuous surface coal mining operation" are discussed in the January 23, 1981 Federal Register notice (46 FR 7898-99) and that discussion is adopted here and incorporated by and made a part hereof. As stated in the January 23, 1981 notice announcing the final rule, the Secretary interprets the June 30, 1980 decision of the Court of Appeals to authorize him to place a reasonable limit on the extent of grandfathering in order to carry out the "purposes and provisions" of the Surface Mining Act. See 46 FR 7895 (January 23, 1981) and In Re: Surface Mining Regulation Litigation, No. 78-2191, 78-2192, Slip Op. (D.C. Cir., June 30, 1980). OSM is cognizant of the claims of the State of Illinois that the portions of the rules made effective today "fail(ed) to exempt or otherwise give account to the distinct differences between surface and underground coal mining, to the application of this rule to surface structures and facilities, and to the physical characteristics of certain continuous and ongoing surface coal mining operations in Illinois," Illinois Department of Mines and Minerals v. United States Department of the Interior, No. 81-0708, D.D.C. Petition for Judicial Review, p. 3, filed March 24, 1981. OSM has worked closely with the State of Illinois in developing these regulations (see discussion at 45 FR 25994-95, April 16, 1980). OSM will continue to work closely with Illinois and all states in the context of state programs submissions and amendments in accommodating the physical characteristics of mining in each state. However, OSM makes this rule effective today in the belief that it is necessary to establish a general regulatory structure which responds to Congressional concern that the grandfather clause give some flexibility to existing operations and which clarifies a section of the Surface Mining Act which is accompanied by conflicting legislative history. EXEMPTION TERMINATION DATE OSM has also carefully considered all comments received on the August 3, 1982 exemption cut-off date. See 30 CFR 716.7(a)(2)(vi) and 785.17(a)(6) of the final regulations published on January 23, 1981. OSM promulgated regulations containing the 1982 exemption termination date based in part on the experience of the State of Illinois. See discussion in proposed rule (45 FR 25994-95, April 16, 1980) and final rule (46 FR 7895-96, January 23, 1981). Two comments were received from the State of Illinois (the Department of Mines and Minerals and the Department of Agriculture) supporting the use of the 1982 termination date. Other general comments in support of and in opposition to the 1982 date were also received. At this time, OSM believes that an orderly transition period between pre-Act and post-Act prime farmland standards may be necessary to reduce wide variations in application of the law and to provide certainty to the public, states and operators on the scope of Section 510(d) of the Act. The public comments received by OSM in past rulemakings and in this rulemaking demonstrate that considerable controversy surrounds the concept of uniform termination date. In order to provide maximum public participation and to enable OSM and commenters to gather additional information on potential solutions to this issue, OSM announces here its intention to engage in further rulemaking on this issue. Meanwhile, the 1982 termination date which appeared in the January 23, 1981 rules will not be made effective and will be deleted. Persons desiring to submit written comments for consideration in proposing a new rule on termination of grandfathering should send those comments to the individual listed under the heading "For Further Information Contact:" OSM is, of course, willing to work with individual States desiring to include a more stringent provision (i.e., a termination date) in their programs. The Office does not agree that the action taken today will interfere with state primacy or destroy thousands of acres of prime farmland. As noted in the January 23, 1981, Federal Register notice (46 FR 7897), there is an orderly procedure and opportunity for states to amend their programs to take this rule into account. In addition, the interim program rule at 30 CFR 716.7(a)(2) will become effective today in States without primacy and in States with primacy for those operations not yet permitted under permanent programs. In addition, and as noted in some public comments, eligibility for grandfathering does not automatically result in inadequate reclamation of the land. Such operations remain subject to the regular non-prime farmland performance standards of the Surface Mining Act, including topsoil protection, revegetation, postmining land use and bonding. EDITORIAL CORRECTION The following line appearing in 30 CFR 716.7(a)(2)(ii) on January 23, 1981, was inadvertently omitted from 30 CFR 785.17(a)(2) -- (decision by the regulatory authority to allow) changes in method of mining operations within the original permit area, or the decision of the regulatory authority to allow (incidental boundary changes * * *). This correction makes the interim and permanent program regulations identical and is not considered a substantive change. Statements Under E.O. 12291 and NEPA OSM has determined that making this rule effective is not a major rule under Executive Order 12291 and a regulatory impact analysis will not be prepared. OSM has determined that making this rule effective is not a major federal action significantly affecting the quality of the human environment based upon a finding of no significant impact (FONSI). The FONSI and environmental assessment are available to the public at OSM's Administrative Record, 1951 Constitution Avenue, N.W., Room 151, South Interior Building, Washington, D.C. 20240. Accordingly, an environmental impact statement will not be prepared. Regulatory Flexibility Act Pub. L. 96-354 requires that the head of an agency must make a certification of effect on small entities and publish the certification and reasons therefor in the appropriate Federal Register document. Following is the required certification. I certify that making this rule effective will not have a significant economic impact on a substantial number of small entities. Potentially there are two groups who may be affected by the revised rules. They are small scale coal operators and small scale farmers who mine coal and grow their crops on prime farmlands. The numbers of small operators in the states most affected by mining are as follows: Kentucky 700, Indiana 30, and Illinois 20. However, the percentage of these operators mining on prime farmlands with a pre-August 3, 1977 permit is not available. This number is assumed to be small since the total acreage of prime farmland affected annually is relatively small. These same assumptions also are true for the number of farmers. In 1977 the annual affected prime farmland acreage was 21,800. In forming these conclusions, it should be remembered that not all prime farmland is in crops and that even with a grandfather exemption the land must be returned to a "* * * condition capable of supporting the uses it was capable of supporting prior to any mining * * *". Overall, no national effect on small entities is expected and any localized regional impact would be minimal. The possible adverse effects would include the cost to the coal companies of meeting more stringent reclamation standards on prime farmlands and of these costs being passed directly on the coal consumer. Dated: September 22, 1981. Daniel N. Miller, Jr., Assistant Secretary, Energy and Minerals. FINAL REGULATIONS The following regulations in Chapter VII of Title 30 of the Code of Federal Regulations are amended as follows: PART 716 -- SPECIAL PERFORMANCE STANDARDS A. 30 CFR 716.7 (a)(2) and (a)(3) are added to read: SEC. 716.7 PRIME FARMLAND. (a) * * * (2) Except as otherwise provided in this paragraph, the requirements of the section are applicable to any lands covered by a permit application filed on or after August 3, 1977. This section does not apply to: (i) Lands on which surface coal mining and reclamation operations are conducted pursuant to any permit issued prior to August 3, 1977; or (ii) Lands on which surface coal mining and reclamation operations are conducted pursuant to any renewal or revision of a permit issued prior to August 3, 1977; or (iii) Lands included in any existing surface coal mining operations for which a permit was issued for all or any part thereof prior to August 3, 1977, provided that: (A) Such lands are part of a single continuous surface coal mining operation begun under a permit issued before August 3, 1977; and (B) The permittee had a legal right to mine the lands prior to August 3, 1977, through ownership, contract, or lease but not including an option to buy, lease, or contract; and (C) The lands contain part of a continuous recoverable coal seam that was being mined in a single continuous mining pit (or multiple pits if the lands are proven to be part of a single continuous surface coal mining operation) begun under a permit issued prior to August 3, 1977. (3) For purposes of this section: (i) "renewal" of a permit shall mean a decision by the regulatory authority to extend the time by which the permittee may complete mining within the boundaries of the original permit, and "revision" of the permit shall mean a decision by the regulatory authority to allow changes in the method of mining operations within the original permit area, or the decision of the regulatory authority to allow incidental boundary changes to the original permit; (ii) a pit shall be deemed to be a single continuous mining pit even if portions of the pit are crossed by a road, pipeline, railroad, or powerline or similar crossing; (iii) a single continuous surface coal mining operation is presumed to consist only of a single continuous mining pit under a permit issued prior to August 3, 1977, but may include non-contiguous parcels if the operator can prove by clear and convincing evidence that, prior to August 3, 1977, the contiguous parcels were part of a single permitted operation. For the purposes of this paragraph, clear and convincing evidence includes, but is not limited to, contracts, leases, deeds or other properly executed legal documents (not including options) that specifically treat physically separate parcels as one surface coal mining operation. * * * * * PART 785 -- REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING B. 30 CFR 785.17(a) is revised to read: SEC. 785.17 PRIME FARMLAND. (a) This section applies to any person who conducts or intends to conduct surface coal mining and reclamation operations on prime farmlands historically used for cropland. This section does not apply to: (1) Lands on which surface coal mining and reclamation operations are conducted pursuant to any permit issued prior to August 3, 1977; or (2) Lands on which surface coal mining and reclamation operations are conducted pursuant to any renewal or revision of a permit issued prior to August 3, 1977; or (3) Lands included in any existing surface coal mining operations for which a permit was issued for all or any part thereof prior to August 3, 1977, provided that: (i) Such lands are part of a single continuous surface coal mining operation begun under a permit issued before August 3, 1977; and (ii) The permittee had a legal right to mine the lands prior to August 3, 1977, through ownership, contract, or lease but not including an option to buy, lease, or contract; and (iii) The lands contain part of a continuous recoverable coal seam that was being mined in a single continuous mining pit (or multiple pits if the lands are proven to be part of a single continuous surface coal mining operation) begun under a permit issued prior to August 3, 1977. (4) For purposes of this section: (i) "Renewal" of a permit shall mean a decision by the regulatory authority to extend the time by which the permittee may complete mining within the boundaries of the original permit, and "revision" of the permit shall mean a decision by the regulatory authority to allow changes in the method of mining operations within the original permit area, or the decision of the regulatory authority to allow incidental boundary changes to the original permit; (ii) A pit shall be deemed to be a single continuous mining pit even if portions of the pit are crossed by a road, pipeline, railroad, or powerline or similar crossing; (iii) A single continuous surface coal mining operation is presumed to consist only of a single continuous mining pit under a permit issued prior to August 3, 1977, but may include non-contiguous parcels if the operator can prove by clear and convincing evidence that, prior to August 3, 1977, the non-contiguous parcels were part of a single permitted operation. For the purposes of this paragraph, clear and convincing evidence includes, but is not limited to, contracts, leases, deeds or other properly executed legal documents (not including options) that specifically treat physically separate parcels as one surface coal mining operation. (Secs. 201, 501, 527 and 529, Pub. L. 95-87 Stat. 445 (30 U.S.C. 1201)) [FR Doc. 81-28071 Filed 9-28-81; 8:45 am] BILLING CODE 4310-05-M FEDERAL REGISTER: 46 FR 6942 (January 22, 1981) DEPARTMENT OF THE INTERIOR AGENCY: Office of Hearings and Appeals (OHA) 43 CFR Part 4 Special Rules Applicable to Surface Coal Mining Hearings and Appeals ACTION: Final rule. SUMMARY: This final rule changes the effective date of filing legal documents in adjudicative proceedings under the Surface Mining Control and Reclamation Act of 1977. This action is necessary so that delays in the mail will not cause parties to lose their legal rights. It permits filing to be effective upon mailing the document rather than on receipt of the document. EFFECTIVE DATE: January 22, 1981. FOR FURTHER INFORMATION CONTACT: Bruce R. Harris, Office of Hearings and Appeals, 4015 Wilson Blvd., Arlington, Virginia 22203 (703-557-9037). SUPPLEMENTARY INFORMATION: 43 CFR 4.1107(g) concerns the effective filing date for documents filed with an administrative law judge, other than a document initiating a proceeding, and for all documents filed with the Board of Surface Mining and Reclamation Appeals. Presently, the regulation provides that the filing date is the date the document is received by the administrative law judge or the Board. Mail delays have resulted in the dismissal of several appeals by the Board for late filing. To alleviate this problem, 43 CFR 4.1107(g) is changed to make the effective filing date the date of mailing for a notice of appeal or petition for discretionary review filed with the Board, rather than the date of receipt. However, the date of receipt is retained for cases in which the Board has a regulatory deadline for issuing a decision -- 30 days from the filing of a perfected application under 43 CFR 4.1187(h) and within 60 days of the date the hearing record is closed by the administrative law judge under 43 CFR 4.1196. Language is added to place the burden of establishing the date of mailing on the person filing the document. A postmark will suffice as evidence of mailing; however, occasionally mail is delivered with an illegible postmark or no postmark at all. Therefore, filing parties are cautioned that the best evidence of the date of mailing is a certificate of mailing issued by the post office. In addition, a postage meter postmark will not be considered evidence of mailing since such meters may be adjusted to show a date other then the actual date of mailing. Proof that a document was properly addressed would also be required to establish the date of mailing; this can also be accomplished by obtaining a certificate of mailing. Since 43 CFR 4.1107(g), as changed, relates only to notices of appeal and petitions for discretionary review filed with the Board, 43 CFR 4.1107(h) is added to establish the effective filing date for all other documents filed with the Board and for all documents, other than an initiating document, filed with an administrative law judge. The effective filing date for those documents is the date of mailing. The burden of establishing the date of mailing is on the person filing the document. The discussion above concerning establishing the date of mailing is applicable to this regulation also. Note. -- The Department of the Interior has determined that this document is not a significant rule and does not require a regulatory analysis under Exec. Order No. 12044 and 43 CFR Part 14. Because these rules are not significant and are rules of Departmental procedure, they need not be and were not published in proposed form for public comment. 5 U.S.C. 553(b)(A), 43 CFR 14.5(d)(2). They shall be effective on the date of their publication because they do not substantially modify earlier procedures. 43 CFR 14.5(d)(4). Dated: January 16, 1981. Cecil D. Andrus, Secretary of the Interior. 1. Section 4.1107(g) is revised to read: SEC. 4.1107 FILING OF DOCUMENTS. * * * * * (g) The effective filing date for a notice of appeal or a petition for discretionary review filed with the Board shall be the date of mailing or the date of personal delivery, except the effective filing date for a notice of appeal from a decision in an expedited review of a cessation order proceeding or from a decision in a suspension or revocation proceeding shall be the date of receipt of the document by the Board. The burden of establishing the date of mailing shall be on the person filing the document. * * * * * 2. Section 4.1107(h) is added: SEC. 4.1107 FILING OF DOCUMENTS. * * * * * (h) The effective filing date for all other documents filed with an administrative law judge or with the Board shall be the date of mailing or personal delivery. The burden of establishing the date of mailing shall be on the person filing the document. [FR Doc. 81-2328 Filed 1-21-81; 8:45 am] BILLING CODE 4310-10-M 1980: 45 FR 51547 (August 4, 1980) 30 CFR Chap. VII Surface Mining and Reclamation Operations; Permanent Regulatory Program 45 FR 50752 (July 31, 1980) 43 CFR Part 4 Special Rules Applicable to Surface Coal Mining Hearings and Appeals 45 FR 2804 (January 14, 1980) 30 CFR Part 735 Final Rule Change on the Grant Period for Program Development Grants 45 FR 2626 (January 11, 1980) 30 CFR Parts 722 and 843 Service of Notices of Violation, Cessation Orders and Show Cause Orders and Informal Public Hearings FEDERAL REGISTER: 45 FR 51547 (August 4, 1980) DEPARTMENT OF THE INTERIOR AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM) 30 CFR Chap. VII Surface Mining and Reclamation Operations; Permanent Regulatory Program ACTION: Notice of suspension and statement of policy regarding effect on State programs. SUMMARY: SUMMARY: Notice is given that certain rules in 30 CFR Chapter VII, are suspended pending the outcome of rulemaking to consider modification of those rules. The effect of the suspensions on the process for review of State permanent regulatory programs is also announced. Affected rules are all rules suspended or remanded by the decision of the United States District Court for the District of Columbia (Civil Action No. 79- 1144). Memorandum Opinions, February 26, 1980 and May 16, 1980. EFFECTIVE DATE: August 4, 1980. ADDRESSES: Copies of the Court opinions mentioned below may be obtained from the Administrative Record, Office of Surface Mining, Room 153, 1951 Constitution Avenue, N.W., Washington D.C. 20240. FOR FURTHER INFORMATION CONTACT: David R. Maneval, Assistant Director, Technical Services and Research, Office of Surface Mining, U.S. Department of the Interior, Washington, D.C. 20240; (202) 343-4264. SUPPLEMENTARY INFORMATION: On March 13, 1979, OSM published regulations (44 FR 14901 et seq. ) implementing the permanent regulatory program of Title V of the Surface Mining Control and Reclamation Act of 1977 (SMCRA), Pub. L. 95-87, 30 U.S.C. 1251-1279. The rules were challenged in lawsuits brought by representatives of the coal industry, two States, and environmental groups. These lawsuits were consolidated and heard by the U.S. District Court for the District of Columbia, In re: Permanent Surface Mining Regulation Litigation, Civil Action No. 79-1144, Consolidated, filed May 10, 1979. After a review of the challenges brought, OSM recognized the need to propose changes to certain sections of those regulations. Notices were published in the Federal Register suspending the effectiveness of certain regulations challenged in this litigation. 44 FR 67942 (November 27, 1979), 44 FR 77447 and 77454 (December 31, 1979), and 45 FR 6913 (January 30, 1980). The present notice suspends other regulations at issue in the litigation which were remanded by the District Court in its opinions of February 26, 1980 and May 16, 1980. At the discretion of the Secretary, the Department may appeal the Court's decisions. This suspension notice is thus no reflection on the Secretary's intent to appeal any of these regulations. OSM intends to propose appropriate revisions to the rules in the Federal Register in the near future. STATEMENT OF POLICY REGARDING STATE PROGRAMS OSM is concerned that the review and approval of State regulatory programs proceed expeditiously without imposing an undue burden on the States and associated parties that may be affected by those areas where rules are being suspended and new regulations will be proposed. In its May 16, 1980, opinion, the District Court ordered the Secretary to affirmatively disapprove any provision in a State program under consideration which incorporates a suspended or remanded Federal regulation. Although the Secretary intends to appeal that portion of the court's opinion, he intends to comply with it pending its modification by appeal or by his stay motion filed June 16, 1980. States are not required to take any action to implement the court's order. The Secretary will disapprove in each State program submission the provisions which incorporate suspended or remanded Federal regulations. At least ten days prior to the close of the public comment period on a State submission, the Regional Director shall make publicly available a list of all provisions of the State program which OSM intends to recommend the Secretary disapprove. In the alternative, comment periods on the State submission will be extended or reopened to allow a minimum of ten days for public review of the list of provisions which may be disapproved. Notice of the availability of this list shall appear in the Federal Register. Disapproval of specific provisions will not jeopardize the approval, or approval with conditions, of the entire State program if the program otherwise adequately satisfies the minimum criteria for approval. Upon promulgation of new regulations to replace those which have been suspended, the Secretary will afford States which do not have approved programs a reasonable opportunity to amend their programs as appropriate. In general, the provisions of 30 CFR 732.17 will govern this process for States with approved programs. JUSTIFICATION FOR IMMEDIATE EFFECTIVE DATE OF SUSPENSION Pending the outcome of the upcoming rulemaking actions, certain rules must be suspended immediately to implement the order of the District Court. In addition, maintaining regulations in effect which the Secretary has determined should be proposed for amendment would be unfair to the States which have submitted State regulatory programs for review. Dated: July 29, 1980. David A. Schuenke, Acting Assistant Secretary, Energy and Minerals. In consideration of the foregoing, the following regulations are suspended: SECS. 732.15 AND 840.13 [Certain provisions suspended] 1. 30 CFR 732.15(b)(7) and 840.13(a). These regulations are suspended insofar as they require State programs to establish a point system for assessing civil penalties or to impose civil penalties as stringent as those appearing in 30 CFR 845.15. Section 518(i) of the Act requires only the incorporation of penalties and procedures explicated in section 518. The system proposed by the State must incorporate the four criteria of section 518(a). (30 U.S.C. 1268) SEC. 761.5 [Certain provisions suspended] 2. 30 CFR 761.5(a)(2)(i). The regulation is suspended insofar as it requires that all permits must have been obtained prior to August 3, 1977, in order to establish a valid existing right to surface mine. Pending further rulemaking, the Secretary will interpret this regulation as requiring a good faith effort to obtain all permits. (30 U.S.C. 1272(c)) SEC. 776.11 [Certain provisions suspended] 3. 30 CFR 776.11(b)(3) and (5). Section 776.11(b)(3) is suspended insofar as it requires a map of the exploration area. A description of the area is still required. Section 776.11(b)(5), requiring an operator to explain the basis upon which he claims the right to enter the exploration area when the surface is owned by a person other than the operator, is suspended. (30 U.S.C. 1262(a)) SECS. 779.20, 783.20, 780.16 and 784.21 [Certain provisions suspended] 4. 30 CFR 779.20/783.20 and 780.16/784.21. The regulations requiring the permit application to contain a study of fish and wildlife and a fish and wildlife reclamation plan are suspended. (30 U.S.C. 1257(b) and 1258(a)) SECS. 779.21 and 783.21 [Certain provisions suspended] 5. 30 CFR 779.21 and 783.21. the regulations are suspended to the extent they require soil survey information for lands not qualifying as prime farmland. Section 507(b)(16) of the Act requires a permit applicant to conduct a reconnaissance of the permit area. The Permit application must contain a soil survey only for those lands which the inspection indicates are or may be prime farmlands. (30 U.S.C. 1257(b)(16)) SEC. 783.25 [Certain provisions suspended] 6. 30 CFR 783.25 (c), (h), and (i). Section 783.25 requires cross sections, maps and plans as part of the information submitted in an underground permit application. Subsections (c), (h), and (i), which concern coal seam and overburden description; location of existing and previously mined areas; and location of waste disposal and impoundments, are suspended. (30 U.S.C. 1257(b)) SEC. 785.17 [Certain provisions suspended] 7. 30 CFR 785.17(b)(8). The regulation is suspended insofar as it requires demonstration in the permit application of current estimated yields under a high level of management. The permit application must still demonstrate that the applicant has the technological capability to restore the prime farmland to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management. (30 U.S.C. 1260(b)) SEC. 785.19 [Certain provisions suspended] 8. 30 CFR 785.19(d)(2)(iii) and (iv). The regulation is suspended to the extent it requires water quality analyses describing seasonal variations over at least one full year. States may permit submission of an analysis from data collected over a shorter period of time or extrapolation from existing data if such shorter period or extrapolation process is sufficient to enable the regulatory authority to make a determination of the impact of the proposed operation on the hydrologic balance of the area, as required by Sec. 785.19(e). (30 U.S.C. 1260(b) and 1265(b)) SEC. 785.19 [Remanded] 9. 30 CFR 785.19(e)(1)(ii). In order to approve a permit application for surface coal mining on lands located west of the one hundredth meridian west longitude, the regulation requires the regulatory authority to find that a proposed operation will not materially damage the quantity and quality of water in surface and underground water systems that supply alluvial valley floors. The regulation was remanded by the court to allow the Secretary to add exclusions for undeveloped rangelands and negligible farmland interruption. Pending further rulemaking, the Secretary will interpret this regulation in accordance with the court decision. (30 U.S.C. 1260(b)(5)) SEC. 785.19 [Certain provisions suspended] 10. 30 CFR 785.19(e)(2). The small acreage exemption test for mining on alluvial valley floors is suspended. The regulation was remanded to allow the Secretary to revise it to allow mining on all alluvial valley floor that results in a negligible impact on a farm's production. (30 U.S.C. 1260(b)(5)) SEC. 807.11 [Remanded] 11. 30 CFR 807.11(e). The regulation was remanded to allow revision to permit citizen access to the minesite during performance bond release proceedings, as required by section 519 of the Act. Pending further rulemaking, the Secretary will interpret the regulation in accordance with the court decision. (30 U.S.C. 1263(b) and 1269(g)) SEC. 808.14 [Certain provisions suspended] 12. 30 CFR 808.14(b). The regulation is suspended insofar as it allows the regulatory authority to retain forfeited bond money in excess of the amount necessary to implement and complete a reclamation plan. (30 U.S.C. 1259(a)) SECS. 816.42 and 817.42 [Certain provisions suspended] 13. 30 CFR 816.42(a) (1) & (7) and 817.42(a) (1) and (7). The regulations are suspended to the extent they require runoff from reclaimed areas to meet the same effluent limitations as those for actively mined lands. However, as provided in Secs. 816.46(u) and 817.46(u), sedimentation ponds shall not be removed until the drainage entering the pond from both reclaimed lands and actively mined areas has met the applicable State and Federal water quality requirements for the receiving stream. (30 U.S.C. 1265(b)(10)) SECS. 816.65 and 817.65 [Certain provisions suspended] 14. 30 CFR 816.65(f) and 817.65(f). The regulations are suspended insofar as they restrict blasting at distances greater than 300 feet from a dwelling or other structure, or from flammable facilities and water lines. (30 U.S.C. 1272(e)(5)) SECS. 816.95 and 817.95 [Certain provisions suspended] 15. 30 CFR 816.95 and 817.95. The air resources protection regulations are suspended. (30 U.S.C. 1265(b)(4)) SECS. 816.115 and 817.115 [Certain provisions suspended] 16. 30 CFR 816.115 and 817.115. Sections 816.115 and 817.115 are suspended to the extent they require that land must be used for livestock grazing when the approved postmining land use is range or pasture. (30 U.S.C. 1260(d) and 1265(b)) SECS. 816.116 and 817.116 [Certain provisions suspended] 17. 30 CFR 816.116(b) and 817.116(b). The regulations are suspended insofar as they extend the period of responsibility for revegetation from the point at which the operator meets the vegetative standards of section 515(b)(19). States may permit the period of liability to begin from the point at which the operator has completed seeding and fertilizing. The period of liability shall begin again whenever augmented seeding, fertilizing, irrigation or other work is required or conducted on the site prior to bond release. [30 CFR 805.13(b)). (30 U.S.C. 1265(b)(20)) SECS. 811.133 and 817.133 [Certain provisions suspended] 18. 30 CFR 816.133(b)(1) and 817.133(b)(1). The regulations are suspended to the extent they preclude the operator from choosing to restore previously mined but unreclaimed land to a condition capable of supporting prior- to-mining use as well as a higher use. (30 U.S.C. 1265(b)(2)) SECS. 816.133 and 817.133 [Certain provisions suspended] 19. 30 CFR 816.133(c) (4) and (9) and 30 CFR 817.133(c) (4) and (9). The regulations are suspended to the extent they require the applicant for an alternative land use to submit letters of commitment or firm written commitments from third parties to demonstrate that financing, attainment, and maintenance of the postmining land use are feasible. (30 U.S.C. 1265(b)(2)) SECS. 816.150-176 and 817.150-176 [Certain provisions suspended] 20. 30 CFR 816.150-176 and 817.150-176. The regulations on roads are suspended. (30 U.S.C. 1265(b)) SEC. 817.54 [Certain provisions suspended] 21. 30 CFR 817.54. The regulation requiring underground mining operators to replace the water supply of landowners if the operation contaminates, diminishes, or interrupts the supply is suspended. (30 U.S.C. 1307) SECS. 817.101 and 817.102 [Remanded] 22. 30 CFR 817.101(b)(1) and 817.102. The regulations were remanded for revision to allow the approximate original contour requirement as applied to underground mining to provide some flexibility for settled fills that have become stabilized and revegetated. Pending further rulemaking, the Secretary will interpret the regulation in accordance with the court decision. (30 U.S.C. 1265(b)(3) and 1266 (b)(10)) SECS. 823.11 and 823.15 [Certain provisions suspended] 23. 30 CFR 823.11(c), 823.15(b), and 823.15(c). Sections 823.11(c), 823.15(b), and 823.15(c) are suspended to the extent they require actual crop production to measure revegetation success on prime farmlands. PART 823 [REMANDED] 24. 30 CFR Part 823. This Part was remanded as it applies to underground mining to allow revision to provide an exemption for surface facilities that are actively used over extended periods but which affect a minimal amount of land. Pending further rulemaking, the Secretary will interpret this Part in accordance with the court decision. (30 U.S.C. 1260(d)) PARTS 701, 779, 780, 783 AND 784 [CERTAIN PROVISIONS SUSPENDED] 25. 30 CFR 701.5 and Parts 779, 780, 783, 784. The definition of the term "mine plan area" in 30 CFR 701.5 is suspended. Pending further rulemaking, the term mine plan area as used in Parts 779, 780, 783, and 784 will be interpreted to mean permit area. Accordingly, the words "permit" or "permit area" will be substituted for "mine plan" or "mine plan area," as appropriate, in the following sections: SEC. 779.11 AND 783.11 -- GENERAL REQUIREMENTS SECS. 779.12 AND 783.12 -- GENERAL ENVIRONMENTAL RESOURCES INFORMATION SECS. 779.13 AND 783.13 -- DESCRIPTION OF HYDROLOGY AND GEOLOGY: GENERAL REQUIREMENTS SEC. 779.14 AND 783.14 -- GEOLOGY DESCRIPTION: SEC. 779.15 AND 783.15 -- GROUND WATER INFORMATION SEC. 779.16 AND 783.16 -- SURFACE WATER INFORMATION SEC. 779.17 AND 783.17 -- ALTERNATIVE WATER SUPPLY INFORMATION SEC. 779.18 AND 783.18 -- CLIMATOLOGICAL INFORMATION SEC. 779.22 AND 783.22 -- LAND USE INFORMATION SEC. 779.24 AND 783.24 -- MAPS: GENERAL REQUIREMENTS SEC. 779.25 AND 783.25 -- CROSS SECTIONS, MAPS AND PLANS SEC. 779.27 AND 783.27 -- PRIME FARMLAND INVESTIGATION SEC. 780.11 AND 784.11 -- OPERATION PLAN: GENERAL REQUIREMENTS SEC. 780.14 AND 784.23 -- OPERATION PLAN: MAPS AND PLANS SEC. 780.21 AND 784.14 -- RECLAMATION PLAN: PROTECTION OF HYDROLOGIC BALANCE SEC. 780.25 AND 784.16 -- RECLAMATION PLAN: PONDS, IMPOUNDMENTS, BANKS, DAMS, AND EMBANKMENTS SEC. 780.37 AND 784.24 -- TRANSPORTATION FACILITIES (30 U.S.C. 1257(b) and 1258(a)) [FR Doc. 80-23369 Filed 8-1-80; 8:45 am] BILLING CODE 4310-05-M FEDERAL REGISTER: 45 FR 50752 (July 31, 1980) DEPARTMENT OF THE INTERIOR AGENCY: Office of Hearings and Appeals (OHA) 43 CFR Part 4 Special Rules Applicable to Surface Coal Mining Hearings and Appeals ACTION: Final rule. SUMMARY: Certain regulations governing adjudicative proceedings under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201-1328 (Supp. I 1977), are being changed to alleviate problems which have arisen because of the present language of those regulations. EFFECTIVE DATE: July 31, 1980. FOR FURTHER INFORMATION CONTACT: Bruce R. Harris, Office of Hearings and Appeals, 4015 Wilson Blvd., Arlington, Virginia 22203, (703) 557-9037. SUPPLEMENTARY INFORMATION: The first change, found in 43 CFR 4.1107(f), concerns the filing date for documents which initiate proceedings with the Hearings Division, Office of Hearings and Appeals. The present language explains that the filing date is the date the document is received in the office in Arlington, Virginia. Filing times begin to run when an operator or permittee receives a notice of violation, a cessation order, a civil penalty assessment, or the results of an assessment conference. Mail delays of as much as 8 or 9 days from parts of Kentucky substantially erode the amount of time an operator or permittee has to file. In some cases mail delays have resulted in proceedings being dismissed for lack of filing timely. The change seeks to alleviate the problem caused by such delays by considering an initiating document sent by mail to be filed timely if it is postmarked within the time allowed for filing. It is necessary to retain the requirement that initial filings be directed to Arlington, Virginia, in order to allow the Chief Administrative Law Judge to maintain control over the Hearings Division docket and to prevent certain field offices from being inundated with cases. The second regulation change, found in 43 CFR 4.1109(c), involves the standard for determining when service of documents is complete. Presently, initiating documents are considered served when they are received, and for any other documents service, if by mail, is complete upon mailing. Mail delays have decreased the time available for parties to respond to documents filed in a proceeding. Changing the service time to date of receipt for all documents eliminates the problem of mail delays. The third change deals with 43 CFR 4.1267(b). That regulation presently allows a party to a section 525 review proceeding who is denied temporary relief by an Administrative Law Judge to appeal to the Board or, in one special circumstance, the alternative of seeking direct review of the denial in Federal court. That particular situation is when temporary relief is sought of a cessation order and the party seeking the relief has complied with the requirements of, and the Administrative Law Judge's decision has been rendered pursuant to, 43 CFR 4.1266(b). The change would make the alternative of judicial review available in any situation in which temporary relief was denied by an Administrative Law Judge. The basis for the change is that experience thus far under the Act dictates that any party denied temporary relief in any section 525 review proceeding should have the option of appealing that denial to the Board or of seeking review of the denial in Federal court. This will allow operators or permittees quick access to Federal court when temporary relief has been denied and will ordinarily permit a more rapid response than is available in the administrative setting. Since these changes are merely procedural in nature, the regulations are being published in final. See 5 U.S.C. 553(b)(A) (1976). Drafting Information: The principal author of these revisions is Bruce R. Harris, Office of Hearings and Appeals, Department of the Interior. Note. -- The Department of the Interior has determined that this document is not a significant rule and does not require a regulatory analysis under Exec. Order No. 12044 and 43 CFR Part 14. Dated: July 25, 1980. James A. Joseph, Under Secretary of the Interior. 1. Section 4.1107(f) is revised to read: SEC. 4.1107 FILING OF DOCUMENTS. * * * * * (f) The effective filing date for documents initiating proceedings before the Hearings Division, OHA, Arlington, VA, shall be the date of receipt in that office, if filed by hand, or the date such document is postmarked, if filed by mail. 2. Section 4.1109(c) is revised to read: SEC. 4.1109 SERVICE. * * * * * (c) Service of copies of all documents is complete at the time of personal service or, if service is made by mail, upon receipt. 3. Section 4.1267(b) is revised to read: SEC. 4.1267 APPEALS. * * * * * (b) Any party desiring to appeal a decision of an Administrative Law Judge denying temporary relief may appeal to the Board or, in the alternative, may seek judicial review pursuant to section 526(a) of the Act. [FR Doc. 80-23121 Filed 7-30-80; 8:45 am] BILLING CODE 4310-10-M FEDERAL REGISTER: 45 FR 2804 (January 14, 1980) DEPARTMENT OF THE INTERIOR AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM) 30 CFR Part 735 Final Rule Change on the Grant Period for Program Development Grants ACTION: Notice of final rule on grant period for Program Development Grants SUMMARY: OSM is deleting Sec. 735.11(c) of the final initial regulatory program rules as published in the Federal Register on December 13, 1977 (42 FR 62707), relating to the maximum number of months during which a State may receive a Program Development Grant. In addition, a new Sec. 735.15(a)(3) is added to provide continued grant assistance. This action is to allow a State to receive a Program Development Grant during the period of time when it does not have an approved State Regulatory Program and is necessitated by the decision of the U.S. District Court for the District of Columbia extending the submission date of a State Regulatory Program to March 3, 1980. EFFECTIVE DATE: January 14, 1980. FOR FURTHER INFORMATION CONTACT: Carl C. Close, Assistant Director, State and Federal Programs, Office of Surface Mining, 1951 Constitution Avenue, NW, Washington, D.C. 20240, 202-343-4225. SUPPLEMENTARY INFORMATION: On December 13, 1977, the Secretary of the Interior promulgated the final rules for the initial regulatory program under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq. (The Act). The rules implement Section 705(a) of the Act which provides for financial assistance to States in developing administering and enforcing State regulatory programs. The Act authorizes grants not to exceed 80 per centum of the total costs incurred during the first year, and 60 per centum of the total costs incurred during the second year, and 50 per centum of the total costs incurred during each year thereafter. Section 735.11(c) limits program development grants to a maximum period of 24 months. This restriction was in accord with the requirement that proposed State regulatory programs be submitted by August 3, 1979. OSM's rules relating to State program submissions are found in 30 CFR Parts 730-736 (44 FR 15323 et seq., March 13, 1979). On July 25, 1979, the U.S. District Court for the District of Columbia, in response to a suit filed by the State of Illinois, enjoined the Department of the Interior from requiring the submission of State programs under Section 503(a) of the Act until March 3, 1980. On August 21, 1979,the court ordered that its injunction continue. The State of North Dakota has received two one-year program development grants. The first was for the period December 1, 1977, to November 30, 1978, and the second is for the period December 1, 1978 to November 30, 1979. As a result of the extended time to prepare submissions provided by the court order, the State of North Dakota decided to use the extension to develop its proposed regulatory program. for that extra period the State desire to extend its current program development grant at the applicable Federal cost sharing percentage authorized by Section 705(a) of the Act. Due to the time restriction imposed by Sec. 735.11(c), however, the extension would be possible. Several other States may also encounter the same problem in the near future. The amendment promulgated today deletes Sec. 735.11(c) and enables a State to continue obtaining program development grant assistance during the period which it may prepare its State Program. It also adds a new Sec. 735.15(a)(3) which specifies that for the third and following years of a program development grant, the Regional Director shall approve grants for not more than 50 percent of the total costs, pursuant to the cost-sharing restrictions of Section 705 of the Act. While 5 U.S.C. 553(a) exempts from public comment rules which deal with grants, the Department's policy has been to provide notice and opportunity for public comment. However, in this case, the Department has determined that the ordinary procedures are impracticable, unnecessary and contrary to the public interest. There are several reasons fir this expedited procedure. First, this change in regulations is necessary in light of a court-ordered change in the required date of a State program submission. Second, the Act does not distinguish between program development activities and permanent program implementation activities insofar as establishing time periods and providing financial assistance. The regulations ere developed wit the August 3, 1979 program submission deadline in effect. That deadline no longer is applicable. Third, the public interest in assisting the States to develop a regulatory program which achieves the purposes of the Act, declared by Congress in section 102(g), far outweighs any individual's interest in having an opportunity to comment before this rule change takes effect. The department is therefore acting in the best interest of the public by enabling a State to obtain program development grants during any period for which it does not have an approved State program. In order to continue to support the program development effort of North Dakota and other States in the future, this rule must be effective immediately. Additionally, the rule change removes restrictions imposed by the regulations as originally promulgated and thus will not adversely affect any State. The Department of the Interior has determined that this document is not a significant rule and does not require a regulatory analysis under Executive Order 12044 and 43 CFR part 14, 43 FR 58292, et seq. (December 12, 1978). The Department of the Interior has determined that this action will not have a significant effect on the human environment and an environmental impact statement will therefore not be prepared. These amendments are effective immediately. Primary author of this document is Gene K. Krueger, State Programs Division, Office of Surface Mining. Dated: January 7, 1980 Joan M. Davenport, Assistant Secretary, Energy and Minerals. AMENDMENT SEC. 735.11 [Amended] 1. Accordingly, 30 CFR 735.11(c) is deleted in its entirety. 2. 30 CFR 735.15(a)(3) is added to read as follows: SEC. 735.15 [Amended] * * * * * (a) * * * (3) For the third year and each following year of a program development grant, the Regional Director shall approve grants for not more than 50 percent of the total agreed upon costs pursuant to Sec. 735.14(a). [FR Doc 80-1167. Filed 1-11-80, 8"45 am] BILLING CODE: 4310-05-M FEDERAL REGISTER: 45 FR 2626 (January 11, 1980) DEPARTMENT OF THE INTERIOR AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM) 30 CFR Parts 722 and 843 Service of Notices of Violation, Cessation Orders and Show Cause Orders and Informal Public Hearings ACTION: Final Rule. SUMMARY: The Office of surface Mining adopts final rules which would clarify procedures for service of notices of violation. Cessation orders and orders to show cause under its interim regulations and would explain the effect of refusal to accept tender of service. They would also clarify procedures for informal public hearings under the interim and permanent regulations of the Office, which govern surface coal mining operations under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). EFFECTIVE DATE: February 11, 1980. FOR FURTHER INFORMATION CONTACT: Richard Robinson, Enforcement Specialist; Office of Surface Mining. Department of the Interior, Washington, DC 20240, 202-343-8061. SUPPLEMENTARY INFORMATION: In this document, the Office adopts final rules to modify provisions regarding the service of notices of violation, cessation orders and orders to show cause, and to clarify procedures for informal public hearings under the interim and permanent regulatory programs of SMCRA. The Director, Office of Surface Mining, has determined that these final rules are not significant rules, and do not require the preparation of a regulatory analysis. INTRODUCTION TO FINAL RULES The revised Sec. 722.14, which conforms to similar language in the permanent regulations, Sec. 843.14, explains in greater detail the manner for service of notices of violation, cessation orders, and show cause orders. It also states expressly OSM's interpretation of its existing regulations regarding service, namely, that service is complete upon tender and shall not be deemed incomplete because of refusal to accept. Thus, for instance, a person who refuses to accept certified mail is deemed to have been served with that mail. This includes failure to pick up such mail at the post office. Service will be made at the minesite, where possible, but failure to do so will not invalidate proper service by mail. Three changes are made to Sec. 843.15 of the permanent regulations, regarding informal public hearings: 1. First, subsection (b) has been rewritten to clarify how an informal public hearing may be waived or the time for holding it extended. 2. Second, the second sentence of subsection (g) has been deleted. This sentence provided that no statements made or evidence introduced at an informal public hearing could be introduced in a subsequent hearing to impeach a witness. This deletion is being made because the Office has reconsidered this sentence and believes that it would result in the exclusion of a great deal of valid evidence. 3. Third, subsection (h) has been added to indicate that the decision as to whether a minesite should be viewed during the hearing is that of the person conducting the hearing. Regarding Sec. 722.15, The Office has modified this regulation to conform it to Sec. 843.15. Section 722.15 incorporates the following changes: 1. The term "informal public hearing", which is the term used in Sec. 843.15, has been adopted in place of the term "minesite review". 2. Subsection (a) clarifies the situations in which an informal public hearing will be made available. Under the present language, informal public hearings are provided only for cessation orders. This is both too narrow and too broad. Under section 521(a)(5) of the Act, a public hearing must be provided for any "notice or order" issued pursuant to section 521 which "requires cessation of mining". Thus, the present Sec. 722.15 is too narrow because it does not provide for hearings with respect to notices of violation which result in "cessation of mining". The Office recognizes that even though it may not expressly order a cessation of mining by means of a notice of violation, a notice of violation may be necessary implication cause a cessation of mining, in which case an informal public hearing should be made available. 3. Similarly, a cessation order may not require "cessation of mining". It is possible for a cessation order not to result in "cessation of mining", as for example, where a cessation order directing the operator to cease placing spoil on the downslope may not prevent the operator from extracting coal and transporting it within or from the minesite. In such a case, no informal public hearing is required under section 521(a)(5). 4. Subsection (b), which based on the next-to-last sentence of the present Sec. 722.15(a), has been rewritten to refer to notices of violation as well as to orders. It has also been rewritten to clarify how an informal public hearing may be waived or the time for holding it extended. 5. Subsections (c), (d) and (e), which are based on the present Secs. 722.15(c) and (d), have been rewritten for clarification. 6. Subsection (f), which is based on the present Sec. 722.15(e), has been modified to shorten the time period for issuance of a decision after an informal public hearing, and for clarity. The time period has been shortened because the Office believes that the informal public hearing procedures is intended to give the operator an expedited review of any notice or order that causes a cessation of mining. The five-day period for issuing a decision after an informal hearing is intended to benefit the operator. The Office recognizes that in some cases, the Office may not have ll the information necessary to make the decision in five days. For example. The operator may claim that he had approval from the State to take certain action, but may be unable to produce written proof. If he asks the State to supply him with written proof, it may take more than five days for the Office to receive it from the State, In such case, the Office would issue a decision based on the facts established as of the fifth day, and reconsider and modify this decision, if appropriate, after receipt of additional information. If no additional information is received, the original decision would remain as final. BACKGROUND Proposed modifications to 30 CFR Parts 722 and 843 were published in the Federal Register on August 20, 1979 (44 FR 48270), and a notice of public hearing relating to these proposed modifications were published in the Federal Register on September 28.1979 (44 FR 55909). A public hearing was held on October 9, 1979, in Washington, D.C. At the close of the comment period on October 15, 1979, ten commenters had submitted written comments. The transcript of the public hearing and all written comments have been fully and completely considered in the development of these final regulations. SECTION 722.14 1. Almost every commenter objected to the second sentence of Sec. 722.14(a)(1), which permits service on "any individual at the site who appears to be an employee or agent of the person to whom the notice or order is issued", where the designated agent of individual who appears to be in charge cannot be located at the site. The commenters felt that service on such persons of tern results in the notice or order being lost or never being delivered to a responsible individual who will take proper action. Therefore, the Office has changed this subsection. Tender of service will be made on the operator's designated agent if he or she is reasonably available at the site. If the designated agent is not reasonably available at the site, tender of service will be made on any person at the site who appears to be in charge. Inquiry will be made at the office on the site, if there is one, for such person. If there is no office or no one is there, however, service may then be made on any individual at the site who appears to be an employee or agent of the person to whom the notice or order is issued. The designation of an agent for such service should be made on the mine identification sign or on the mine bulletin board located near the office on the minesite, and should be conspicuous and easy to read. Such designation may sl also include the name and address of one person t whom a courtesy copy of the notice of violation, cessation order or show cause order may be mailed (see comment below). If no designation has been made or the designation is not located as described above, service will be made on the person who appears to be in charge. If such person cannot be located, service will be made on any individual at the site who appears to be an employee or agent of the person t whom the notice or order is issued. 2. One commenter suggested that Sec. 722.14(d) be modified to provide that a notice of violation or cessation order must be mailed to the person to whom it is issued, when it has been served in accordance with Sec. 722.14(a). As stated in the preamble to the permanent regulations (44 FR 15304, March 13, 1979), the Office does not agree with this suggestion. The permittee/operator should be able to rely on its own employees/agents to forward copies of notices and orders. The Office will, however, mail a courtesy copy of the notice of violation or cessation order to a person as designated above. Such mailing or the failure to do so shall have no effect on the validity of the notice or order. 3. One commenter suggested that Sec. 722.14(d) provide that copies of notices and orders be furnished by the Office only to persons requesting them, and that the Office keep a record of all such requests, which record would be available to the permittee. The Office has decided not to accept this comment for two reasons. First, both the Freedom of Information Act and the Surface Mining Control and Reclamation Act provide that copies of these documents will be available to operators. Second, the Office feels that such a recordkeeping procedure would place too great an administrative burden on the Office in relation to the benefit received from such a procedures. SECTIONS 722.15 and 843.15 1. Several commenters felt that the definition of "mining" in Sec. 722.15(a) and Sec. 843.15(a) was too restrictive and ought to be expanded. One commenter suggested that all cessation orders should automatically trigger an informal public hearing. The Office disagrees with this view because reviews of this type of notice or order are necessary only for potential substantial economic consequences to the operator caused by cessation of operations. The Act does not contemplate imposing upon the Office the administrative burden of holding informal hearings for every notice violation ad cessation order issued. The operator is encouraged, however, to attempt to reach an informal resolution of the issue by contacting the inspector or his supervisor to discuss the operator's concerns. If persuaded that the notice or order was issued in error, the inspector will modify of vacate the same (see Federal Register March 13, 1979, 44 FR 15304). The Office has changed the definition of "mining", however, to include those operations separated from a minesite which clean, concentrate, process, prepare or load coal. The Office believes that a notice or order for such an operation which requires a cessation of these activities may cause substantial economic consequences for this kind of operation. 2. One commenter suggested that there should be no civil penalty fi the notice or order expires due to the failure of the Office to conduct a timely informal public hearing. The Office believes that the commenter has confused the concept "expire" with the concept "vacate". A notice or order which is vacated is totally expunged as if it had never been issued. A notice or order which expires (or which is terminated upon the operator's compliance) is valid for the period during which it was in effect. A civil penalty must be assessed and collected for the period during which the notice of violation or cessation order was in effect if required under the penalty point system set out in 30 CFR Part 722. In addition, the Office will include the notice or order in its calculation of the points to be assigned for the operator's history of previous violations" as described in Secs. 723.12(b) and 845.13(b) of these regulations, regardless of whether or why a notice or order was allowed to expire. Furthermore, the informal public hearing is separated from an operator's right to challenge a civil penalty assessment. If the notice of violation or cessation order expires, the operator may return t work although he may not continue the allegedly illegal activity. Also, the operator may challenge his civil penalty through the assessment conference provided in Sec. 723.17 and Sec. 845.18, and by means of the formal review process described in Secs. 723.18 and 845.19. 3. Two commenters objected to the statement in Sec. 722.15(a) and Sec. 843.15(a) that the OSM office nearest to the minesite shall be deemed to be reasonably close to the minesite unless a closer location is requested and agreed to by the Office. The Office wishes to make it clear that this includes district and field as well as regional offices. Another commenter suggested that all informal public hearings be held in the county where the minesite is located, and that for water pollution violations the hearing be held at the nearest downstream location. The proposed rule has not been changed. However, where the minesite is a long distance from the nearest OSM office and a view of the minesite may be of aid in the hearing, a closer location to the minesite will be scheduled. Where the OSM office is relative3ly close to the minesite and there is no good reason to hold the hearing nearer the minesite, the hearing will be held at the OSM office nearest the minesite. Operators will generally be afforded a hearing site convenient to both parties, but it is necessary to vest the final decision as to where a hearing will be held with the Office. 4. One commenter suggested that at least part of the hearing be held after 7:00 p.m. for the benefit of the public. While OSM encourages public participation in all phases of its activities, the Office feels that the informal public hearing is basically for the benefit of the operator. The Office also fees that such a regular procedure would place too great an administrative burden on the Office because of the number of these hearings. OSM feels that public participation is adequately provided for in this instance. 5. Two commenters objected to the provision for waiver of the hearing in Sec. 722.15(b) and Sec. 843.15(b), and suggested that an operator should not have the burden of requesting an informal public hearing. The Office has not accepted this comment because of its experience that a great number of operators entitled to these hearings failed to appear for them, thus wasting the valuable time of OSM personnel. The Office fees that in view of the requirement in Secs. 722.15(b)(1)(i) and 843.15(b)(1)(i) that OSM notify the operator of his right to a hearing, the minimal action of requesting a hearing is not too great a burden on those operators desiring one. Moreover, such a procedure would remove the burden of the Office holding such hearings where operators neither desire one nor intend to appear. 6. One commenter indicated that Secs. 722.15 and 843.15 do not conform to the requirements of section 525(c) of the Act regarding temporary relief. The informal public hearing provided in section 521(a)(5) of the Act is entirely separate from the hearing on temporary relief in Sec. 525(c). The rules in Secs. 722.15 and 843.15 would not apply to temporary relief requests. 7. One commenter indicated that the first sentence in subsection (b) of Secs. 722.15 and 843.15 is confusing, and that "even though" should be substituted for the first "if" in that sentence. The Office agrees that this sentence is confusing, and has clarified when a notice or order does not expire and when no hearing will be required. 8. One commenter pointed out that Sec. 722.15(b)92) and Sec. 843.15(b)(2) are not the same. The two subsections have ben changed to be the same and to clarify that the written notice must be delivered or sent no later than five business days after the notice or order is served. 9. One commenter indicated that the time by which the Office shall send the decision to all interested parties is not specified in Sec. 722.15(f). The rule now states that the decision shall be sent within five business days after the close of the hearing. The Office will also make an effort to telephone the operator with the decision prior to mailing, where possible, if the decision modifies or vacates the notice or order. 10. Several commenters objected to the decision of the second sentence of Sec. 843.15(g), which would not allow statements of evidence produced at an informal public hearing to be introduced as evidence or to impeach a witness. The Office has retained this deletion both for the reasons mentioned above and because this sentence has caused confusion at administrative hearings. 11. Two commenters objected that the proposed rule gave the person conducting the informal hearing sole discretion in deciding whether to view the minesite. The final rule has been changed to make sure that the criterion on which the person conducting the hearing will make such a decision is whether a viewing of the minesite will assist in his/her determination of t he appropriateness of the enforcement action or remedial action required. However, a failure to view the minesite by the Office would not invalidate any notice or order. REGULATION DRAFTERS The modifications to the interim and permanent program regulations have been drafted principally by Harriet B. Marple, Chief, Division of Enforcement; Richard Robinson, Enforcement Specialist; John Williams, Staff Attorney and Marc McGraw, Assistant Solicitor for Enforcement. Dated: December 28, 1979. Joan M. Davenport, Assistant Secretary Energy and Minerals. PART 722 ENFORCEMENT PROCEDURES Section 722.14 is revised to read as follows: SEC. 722.14 SERVICE OF NOTICES OF VIOLATION, CESSATION ORDERS, AND ORDERS TO SHOW CAUSE (a) A notice of violation or cessation order shall be served on the person to whom it is directed or his designated agent promptly after issuance, as follows: (1) By tendering a copy at the surface coal mining and reclamation operation to the designated agent or to the person to whom it is directed. If no such agent is reasonably available, a copy may be tendered to the individual who, based upon reasonable inquiry by the authorized representative, appears to be in charge of the surface coal mining and reclamation operation referred to in the notice or order If no such individual can be located at the site, a copy my be tendered to any individual at the site who appears to be an employee or agent of the person to whom the notice or order is issued. Service shall be complete upon tender of the notice or order and shall not be deemed incomplete because of refusal to accept. (2) As an alternative to paragraph (a)(1) of this section, service may be made by sending a copy of the notice or order by certified mail or by hand to the person to whom it is issued or his designated agent. Service shall be complete upon tender of the notice or order or of the mail and shall not be deemed incomplete because of refusal to accept. (b) A show cause order, or a vacation, modification or termination of a notice or order, may be served on the person to whom it is issued in either manner provided in paragraph (a) of this section. (c) Designation by any person of an agent for service of notices and orders shall be made in a conspicuous, easy-to- read manner on the mine identification sign, or on the mine bulletin board posted by the minesite office. (d) The Office shall furnish copies of notices and orders to the State regulatory authority, if any, after their issuance. The Office may furnish copies to any person hiving an interest in the surface coal mining and reclamation operation or the permit area, such as the owner of the fee, a corporate officer of the permittee, or the bonding company. Section 722.15 is revised to read as follows: SECTION 722.15 INFORMAL PUBLIC HEARING (a) Except as provided in paragraphs (b) and (c) of this section, a notice of violation or cessation order which requires cessation of mining, expressly or by necessary implication, shall expire within 30 days after it is served unless an informal public hearing has been held within that time. The hearing shall be held at or reasonably close to the minesite so that it may be viewed during the hearing or at any other location acceptable to the Office and the person to whom the notice or order was issued. The Office of Surface Mining office nearest to the minesite shall be deemed to be reasonably close to the minesite unless a closer location is requested and agreed to by the Office. Expiration of a notice or order shall not affect the Office's right to assess civil penalties with respect to the period during which the notice or order was in effect. No hearing will be required where the condition, practice or violation in question has been abated, of the hearing has been waived. For purposes of this section only, mining means (1) extracting coal from the earth or from coal waste piles and transporting it within or from the permit area, and (2) the processing, cleaning, concentrating, preparing or loading of coal where such operations occur at a place other than at a minesite. (b) A notice of violation or cessation order shall not expire as provided in paragraph (a) of this section if the informal public hearing has been waived or if, with the consent of the person to whom the notice or order was issued, the informal public hearing is held later than 30 days after the notice or order was served. For purposes of this subsection: (1) The informal public hearing will be deemed waived if the person to whom the notice or order is issued: (i) Is informed, by written notice served in the manner provided in paragraph (b)(2) of this section, that he will be deemed to have waived an informal public hearing unless he requests one within 30 days after service of the notice or order, and (ii) Fails to request an informal public hearing within that time. (2) The written notice referred to in paragraph (b)(1)(i) of this section shall be delivered to such person by an authorized representative or sent by certified mail to such person no later than five days after the notice or order is served on such person. (3) The person to whom the notice or order is issued shall be deemed to have consented to an extension of the time for holding the informal public hearing if his request is received on or after the 21st day after the service of the notice of order. The extension of time shall be equal to the number of days elapsed after the 21st day. (c) The Office shall give as much advance notice as is practicable of the time, place, and subject matter of the informal public hearing to: (1) The person to whom the notice or order was issued: (2) Any person who filed a report which led to the notice or order; and (3) The State regulatory authority, if any. (d) The Office shall also post notice of the hearing at the regional district or field office closest to the minesite, and publish it, where practicable, in a newspaper of general circulation in the area of the mine. (e) Section 554 of Title 5 of the United States Code, regarding requirements for formal adjudicatory hearings, shall not govern the conduct of these informal public hearings. An informal public hearing shall be conducted by a representative of the Office, who may accept oral or written arguments and any other relevant information from any person attending. (f) Within five business days after the date of the informal public hearing, the Office shall affirm, modify or vacate the notice or order in writing and send its decision to: (1) The person to whom the notice or order was issued; (2) Any person who filed a report which led to the notice or order; and (3) The State regulatory authority, if any. (g) The granting or waiver of an informal public hearing shall not affect the right of any person to formal review under Sections 518(b), 521(a)(4), or 525 of the Act. (h) The person conducting the hearing for the Office shall determine whether or not the minesite should be viewed during the hearing. In making this determination the only consideration shall be whether a view of the minesite will assist the person conducting the hearing in reviewing the appropriateness of the enforcement action or the required remedial action. PART 843 FEDERAL ENFORCEMENT Sections 843.15(a), (b), (g) are revised and (h) is added to read as follows: (a) Except as provided in paragraphs (b) and (c) of this section, a notice of violation or cessation order which requires cessation of mining, expressly or by necessary implication, shall expire within 30 days after it is served unless an informal public hearing has been held within that time. The hearing shall be held at or reasonably close to the minesite so that it may be viewed during the hearing or at any other location acceptable to the Office and the person to whom the notice or order was issued. The Office of Surface Mining Office nearest to the minesite shall be deemed to be reasonably close to the minesite unless a closer location is requested and agreed to by the Office. Expiration of a notice or order shall not affect the Office's right to assess civil penalties with respect to the period during which the notice or order was in effect. No hearing will be required where the condition, practice or violation in question has been abated or the hearing has been waived. For purposes of this section only, mining means (1) extracting coal from the earth or from coal waste piles and transporting it within or from the permit area, and (2) the processing, cleaning, concentrating, preparing or loading of coal where such operations occur at a place other than at a minesite. (b) A notice of violation or cessation order shall not expire as provided in paragraph (a) of this section if the informal public hearing has been waived or if, with the consent of the person to whom the notice or order was issued, the informal public hearing is held later than 30 days after the notice or order was served. For purposes of this subsection: (1) The informal public hearing will be deemed waived if the person to whom the notice or order is issued: (i) Is informed, by written notice served in the manner provided in paragraph (b)(2) of this section, that he will be deemed to have waived an informal public hearing unless he requests one within 30 days after service of the notice or order, and (ii) Fails to request an informal public hearing within that time. (2) The written notice referred to in paragraph (b)(1)(i) of this section shall be delivered to such person by an authorized representative or sent by certified mail to such person no later than five days after the notice or order is served on such person. (3) The person to whom the notice or order is issued shall be deemed to have consented to an extension of the time for holding the informal public hearing if his request is received on or after the 21st day after the service of the notice of order. The extension of time shall be equal to the number of days elapsed after the 21st day. * * * * * (g) The granting or waiver of an informal public hearing shall not affect the right of any person to formal review under Sections 518(b), 521(a)(4), or 525 of the Act. (h) The person conducting the hearing for the Office shall determine whether or not the minesite should be viewed during the hearing. In making this determination the only consideration shall be whether a view of the minesite will assist the person conducting the hearing in reviewing the appropriateness of the enforcement action or the required remedial action. (Surface Mining Control and Reclamation Act of 1977, Secs. 201, 501, 521(a)(5); 30 U.S.C. 1211, 1251, 1271(a)(5)) [FR Doc. 80-1072. Filed 1-10-80, 8:45 am] BILLING CODE 4310-05-M 1979: 44 FR 77454 (December 31, 1979) 30 CFR Parts 783, 785, 816, 817, and 823 Surface Mining and Reclamation Operations; Permanent Regulatory Program 44 FR 67942 (November 27, 1979) 30 CFR Chap. VII Surface Coal Mining and Reclamation Operations: Permanent Regulatory Program FEDERAL REGISTER: 44 FR 77454 (December 31, 1979) DEPARTMENT OF THE INTERIOR AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM) 30 CFR Parts 783, 785, 816, 817, and 823 Surface Mining and Reclamation Operations; Permanent Regulatory Program ACTION: Notice of suspension. SUMMARY: Notice is given that the Secretary intends to publish interpretations of certain rules and that others are suspended pending the outcome of rulemaking to consider modifications of those rules. Rules affected deal with negative determinations for prime farmlands, geologic descriptions of strata beneath surface operations and facilities associated with underground mines, alternative postmining land use determinations for underground mines, the permanent program prime farmland grandfather clause, the most bulk density criteria for prime farmland soil compaction, underdrain requirements for coal processing waste banks, ground water monitoring of recharge capacity for underground mines, and reference area requirements for certain underground mines. EFFECTIVE DATE: December 31, 1979. FOR FURTHER INFORMATION CONTACT: Paul of Surface Mining, U.S. Department of the Interior, Washington, D.C. 20240; (202) 343-4222. SUPPLEMENTARY INFORMATION: On March 13, 1979, OSM published its permanent program regulations (44 FR 14901 et seq .) implementing Title V of the Surface Mining Control and Reclamation Act of 1977 (SMCRA), P.L. 95-87, 30 U.S.C. 1251-1279. As a result of issues raised during litigation on the permanent program regulations (In re Permanent Surface Mining Regulation Litigation , Civil Action No. 79-1144, Consolidated (D.D.C. filed May 1979)), OSM has recognized the need to propose changes to certain sections of those regulations and publish interpretations of others. A prior notice was published in the Federal Register suspending the effectiveness of certain regulations at issue in the "first round" of this litigation. 44 FR 67942 (November 27, 1979). The present notice suspends certain regulations at issue in the "second round" pending completion of rulemaking to consider their amendment and gives notice of intent to publish interpretations of other rules at issue in this litigation. Notices proposing revisions to or stating interpretations of the rules will be published in the Federal Register in the foreseeable future. STATEMENT OF POLICY REGARDING STATE PROGRAMS: OSM is concerned that the submission and approval of State regulatory programs proceed expeditiously without imposing an undue burden on the States and associated parties that may be affected by those areas where rules are being suspended and new regulations will be proposed. This general guidance is offered to assist States in preparing their programs for submission. Where the suspended regulations have explicit underpinnings in SMCRA, States must still include corresponding statutory provisions in their program applications. For instance, although the Secretary is suspending his rule (30 CFR 785.17(a)) implementing the grandfather clause exemption from certain prime farmland requirements of the permanent program, State statutes must, nevertheless, contain a statutory provision corresponding to the statutory grandfather clause in Section 510(d)(2) of the SMCRA, 38 U.S.C. 1260(d)(2). Where a regulation has been suspended, the State program can have any regulatory provision or no regulatory provision at all, so long as the State program is in accordance with the requirements of the Act and is not inconsistent with regulations which were not suspended. OSM will provide States an opportunity to amend or modify State programs or State program proposals should the Federal regulations which are being suspended not be amended in sufficient time for States to include corresponding regulations in their initial State program submission. Authorities for such adjustments include the provisions for modifications of proposals during the initial stage of program review in accordance with 30 CFR 732.11; for conditional approval under 30 CFR 732.13; or program amendment under 30 CFR 732.17. NOTICE OF FUTURE ACTIONS: 30 CFR 779.27(b)(4) and 183.27(b)(4) . The Secretary intends to publish his interpretation of the phrase "other factors" in these sections as being limited solely to those factors contained in the Secretary of Agriculture's regulations for identification of prime farmland (7 CFR 657.5(a)(2)). Section 779.27(b)(4) and 783.27(b)(4) merely provide for a determination that lands within a proposed permit area clearly do not meet the USDA technical criteria for prime farmland as set forth at 7 CFR 657.5(a)(2). At no time did OSM intend that the reference to "other factors" extend to matters not expressly covered by Sec. 657.5(a)(2). 30 CFR 783.22, 784.15, and 817.133 . The Secretary intends to publish his interpretation of these regulations to allow an operator to apply through the permit revision or renewal procedures of 30 CFR 788.12-788.15 for regulatory authority approval of an alternative postmining land use toward the end of the life of an underground mine rather than obtaining such approval in the original permit, if the original permit demonstrates that the land will be returned to its premining land use capability as required by 30 CFR 817.133(a). 30 CFR 817.116 . The Secretary will propose an amendment to this regulation comparable to that in 30 U.S.C. 816.116(d) for surface mines, to add a provision that, for underground mine permit areas of 40 acres or less in locations with an average annual precipitation of more than 26 inches, certain specified performance standards may be used as an alternative to reference areas to measure revegetation success. The existing regulation remains in effect. JUSTIFICATION FOR IMMEDIATE EFFECTIVE DATE OF SUSPENSION. Pending the outcome of the upcoming rulemakings, certain of the rules must be suspended immediately so as not to prejudice the interests of the plaintiffs in the lawsuit. In addition, maintaining regulations in effect which OSM has determined should be proposed for amendment would be unfair to the States which have submitted or are preparing State program applications for filing by March 3, 1980. As these regulations have no direct impact upon existing or new coal mining operations at this time, their temporary suspension will have little adverse affect upon achieving the Act's purposes pending completion of the rulemaking process. Dated: December 21, 1979. Joan M. Davenport, Assistant Secretary, Energy and Minerals . IN CONSIDERATION OF THE FOREGOING THE FOLLOWING REGULATIONS ARE SUSPENDED: 1. 30 CFR 783.14(a)(1) . The regulation is suspended insofar as it requires a geologic description of the strata down to and including the strata immediately below any coal seam for areas to be affected only by "surface operations and facilities," where no removal; of overburden down to the level of the coal seam will occur. For purposes of this suspension test borings and core samplings do not constitute removal of the overburden down to the coal seam. However, geologic descriptions will continue to be required for areas where overburden is being removed to the level of the coal seam and for certain specified "surface operations and facilities" where required by other regulatory requirements. See 30 CFR 783.25, 784.16(e) and 784.24(b) Authority: 30 U.S.C. 515(b), 516, and 510. 2. 30 CFR 785.17(a). The prime farmland grandfather clause is suspended. The Secretary will rely on Section 510(d)(2), SMCRA, to interpret this exemption for the purposes of the permanent program pending the outcome of further rulemaking. The Secretary's grandfather regulation under the initial program (30 CFR 716.7(a)(2)) remain in effect. Authority: 30 U.S.C. 510(d)(2). 3. 30 CFR 785.17(b)(3) and 823.14(c) . These regulations are suspended insofar as they establish the "moist bulk density" standard for prime farmland soil compaction. Until a standard for soil compaction is proposed and adopted, the Office will implement the permanent program prime farmland standards by requiring that prime farmland permit applications demonstrate and operators mine so that excessive compaction is avoided in replacement of the soil, under Section 508(a)(4)-(5), 510(d)(1) and 515(b)(7) SMCRA. Avoiding excessive compaction is critical to the successful reclamation of prime farmland. See 44 FR 15086. Authority: 30 U.S.C. 510 (b) and (d), 515(b)(7). 4. 30 CFR 816.83(a) and 817.83(a) . These regulations are suspended to the extent that they would preclude an exemption from the underdrain requirement for coal processing waste banks where an operator demonstrated that an alternative to the subdrainage system required in this regulation would ensure structural integrity of the wastebank and protection of ground or surface water quality. Authority: 30 U.S.C. 515(b)(13), 516(b)(5). 5. 30 CFR 817.52(a)(1) . The following language is suspended:"on the recharge capacity of reclaimed lands and..." As stated in the preamble to the proposed rules, underground mining should not affect the structural integrity of water bearing formations and thus no special precautions are necessary to protect recharge capacity. (43 FR 41780, September 18, 1978). For this reason the Secretary determined that a performance standard equivalent to 30 CFR 816.51 was unnecessary. With no performance standard concerning recharge capacity for underground mines in the regulations, a monitoring requirement becomes unnecessary. Authority: 30 U.S.C. 515(b)(10) and 516(b)(9). FEDERAL REGISTER: 44 FR 67942 (November 27, 1979) DEPARTMENT OF THE INTERIOR AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM) 30 CFR Chap. VII Surface Coal Mining and Reclamation Operations: Permanent Regulatory Program ACTION: Notice of suspension of certain rules in 30 CFR Chapter VII SUMMARY: Notice is given that certain rules are suspended pending the outcome of rulemaking to consider modifications of those rules. This action is being taken as a result of certain issues raised during litigation on the permanent program regulations. The specific regulations affected by this action are listed below. EFFECTIVE DATE: November 27, 1979. FOR FURTHER INFORMATION CONTACT: Paul L. Reeves, Deputy Director, Office of Surface Mining, U.S. Department of the Interior, Washington, D.C. 20240; (202) 343-4222. SUPPLEMENTARY INFORMATION: On March 13, 1979, OSM published its permanent program regulations (44 FR 15312 et seq.) implementing the Surface Mining Control and Reclamation Act of 1977 (SMCRA). As a result of certain issues raised during litigation on the permanent program regulations (In re: Permanent Surface Mining Regulation Litigation, Civil Action No. 79-1144, Consolidated (D.D.C. filed May, 1979)), OSM has recognized the need to propose changes to certain sections of those regulations. Notices proposing revisions to the rules will be published in the Federal Register in the foreseeable future. EFFECT ON STATE PROGRAMS OSM is concerned that the submission and approval of State regulatory programs proceed expeditiously without imposing an undue burden on the States and associated parties that may be affected by those areas where rulemaking is to be proposed. This general guidance is offered to assist States in preparing their programs for submission. Where the suspended regulations have explicit underpinnings in SMCRA, States must still include corresponding statutory provisions in their program applications. For instance, although the definition of "public road" in 30 CFR 761.5 is being suspended, State statutes must, nevertheless, contain a statutory provision correspondent to section 522(e) of the SMCRA. 30 U.S.C. 1272(e)(4). Where a regulation has been suspended, the State program can have any regulatory provision or not regulatory provision at all, so long as the State program is in accordance with the requirements of the Act and is not inconsistent with regulations which were not suspended. OSM will provide States an opportunity to amend or modify State programs or State program proposals should the Federal regulations not be amended in sufficient time for States to include corresponding regulations in their State programs in their initial submission. Authorities for such adjustments include the provisions for modifications of proposals during the initial stage of program review in accordance with 30 CFR 732.11; for conditional approval under 30 CFR 732.13; or program amendment under 30 CFR 732.17. JUSTIFICATION FOR IMMEDIATE EFFECTIVE DATE OF SUSPENSION Pending the outcome of the upcoming rulemakings, certain of the rules must be suspended immediately so as not to prejudice the interests of the plaintiffs in the lawsuit. In addition, maintaining regulations in effect which OSM has determined should be proposed for amendment would be unfair to the States which have submitted or are preparing State program applications for filing by March 3, 1980. As these regulations have no direct impact upon existing or new coal mining operations at this time, except Sec. 700.11 and those in Subchapter F which implement Section 522(e) of SMCRA, their temporary suspension will have little adverse affect upon achieving the Act's purposes pending completion of the rulemaking process.. The suspension of portions of Sec. 700.11(b) and Part 761 will not materially affect the administration of the existing structures provisions of the designation program. Dated: November 23, 1979. Charles P. Eddy, Acting Assistant Secretary, Energy and Minerals. NOTICE OF SUSPENDED REGULATIONS: Portions of the following regulations are suspended, or will be amended, as listed below: A. 30 CFR 700.11(b). The following language is suspended: "any such operation conducted by a person who affects or intends to affect more than two acres at physically unrelated sites within one year." B. 30 CFR 701.11(e)(i) and (ii). These two paragraphs are suspended insofar as they may be rad to retain discretion in the regulatory authority to grant an exemption from reconstruction of existing structures after making the findings in 30 CFR786.21. C. Subchapter D. OSM has agreed to amend the subchapter by adding a time table for processing permits on Federal lands. At present, however, no regulation exists to be suspended. D. 30 CFR 761.5 The definition of "public road" is suspended. OSM will rely on Section 522(e)(4) of SMCRA, to interpret this definition pending the outcome of rulemaking. E. 30 CFR 701.5(c) OSM has agreed that as an alternative to the present regulatory language, existing State law may be applied to interpret whether the document relied upon establishes valid existing rights. Furthermore, no plaintiff has taken issue with what is contained in this subsection as far as it goes. Therefore, suspension is not necessary and would be inappropriate because Part 761, implementing 30 U.S.C.1172(e), is applicable to operations under the initial program. F. 30 CFR 761.12(e). OSM has agreed to interpret Section 522(e)(5) of SMCRA as authorizing valid pre-Act waivers and binding subsequent owners to valid waivers of prior owners. However, no plaintiff has taken issue with what is now contained in this subsection as far as it goes. Therefore, its suspension is not necessary to protect plaintiffs' interests and would likewise be inappropriate because Part 761 is applicable to operations under the initial program. G. 30 CFR 761.11(c) and 761.12(f)(1). The words "or eligible for listing on" in these paragraphs of the regulations are suspended. H. 30 CFR 761.11(c) and 761.12(f)(1). The words "or a statutory or regulatory responsibility for" in 30 CFR 761.12(f)(1) are suspended and both these regulations are suspended insofar as they would apply to privately owned places listed on the "National Register of Historic Places" in addition to publicly owned places. I. 30 CFR 786.5. The words "or has not been" are suspended from the definition of "irreparable harm to the environment". J. 30 CFR 805.13(d). The regulation is suspended insofar as it grants an exception from revegetation requirements for a long term intensive agricultural land use, which requirements are specified as those "Of 30 CFR Part 816". K. 30 CFR 806.12(e)(6)(iii) and (g)(7)(iii). The following language is suspended: "and shall discontinue surface coal mining operations until new performance bond coverage is approved". L. 30 CFR 808.12(c). The following language is suspended: "with respect to protection of the hydrologic balance". M. 30 CFR 816.103(a)(1) and 817.103(a)(1). These regulations are suspended. OSM will apply Sections 515(b)(14( and 516(b)(10), SMCRA, and 30 CFR 816.48 and 817.48 pending the outcome of rulemaking. [FR doc. 79-36452. Filed 11-26-79; 8:45 am] BILLING CODE 4310-05-M