FEDERAL REGISTER: 54 FR 116 (January 4, 1989)

DEPARTMENT OF THE INTERIOR
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)

30 CFR Part 756
Approval of the Abandoned Mine Land Reclamation Plan of the Crow Tribe 
Under the Surface Mining Control and Reclamation Act of 1977 (SMCRA)

ACTION: Final rule.  

SUMMARY: In 1982, the Crow Tribe (the Tribe) submitted its proposed Abandoned Mine Land Reclamation Plan
entitled "Crow Tribe of Indians Abandoned Mine Lands Reclamation Plan" (the Plan) to OSMRE under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA). OSMRE published notice of its receipt and requested
public comments on the adequacy of the proposed Plan on May 18, 1982 in the Federal Register, (FR) 47 FR 21274-
21276. The public comment period remained open since 1982, and no further action was taken at that time due to the
lack of authorizing legislation under section 710 of SMCRA.  

   On July 11, 1987, legislation was enacted authorizing the Crow, Hopi, and Navajo Tribes to obtain abandoned
mine land reclamation programs without prior approval of Tribal surface mining regulatory programs. On October
25, 1988 OSMRE published notice of proposed rule and closing of comment period, 53 FR 42976-42977, for
consideration of adequacy of the Crow Tribe's Abandoned Mine Land Reclamation (AMLR) Plan. After
consideration of the comments received and minor revisions the Tribe made to the Plan, the Assistant Secretary for
Land and Minerals Management of the Department of the Interior has determined that the Crow Tribe AMLR Plan
meets the requirements of SMCRA and the Secretary's regulations. Accordingly, the Assistant Secretary has
approved the Crow Tribe AMLR Plan.  

   This final rule is being made effective January 4, 1989, in order to expedite the granting of abandoned mine land
reclamation funds to the Crow Tribe so that it can implement its AMLR Program and undertake Tribal reclamation
projects to protect the public health and safety.  

EFFECTIVE DATE: January 4, 1989.  

ADDRESSES: Copies of the full text of the Crow Tribe AMLR Plan are available for review during regular business
hours at the following locations:  

Crow Tribal Council, Crow Office of Reclamation, P.O. Box 159, Crow Agency, Montana 59022. 
   
Office of Surface Mining Reclamation and Enforcement, Casper Field Office, Room 2128, 100 East B Street,
Casper, Wyoming 82601-1918.

FOR FURTHER INFORMATION CONTACT: Mr. Jerry R. Ennis, Director, Casper Field Office, Office of Surface
Mining Reclamation and Enforcement, Federal Building, 100 East "B" Street, Room 2128, Casper, Wyoming
82601-1918; Telephone: (307) 261-5776.  

SUPPLEMENTARY INFORMATION:     
I.   Background     
II.  Proposed AMLR Plan     
III.      Assistant Secretary's Findings     
IV.  Public Comment     
V.   Assistant Secretary's Decision     
VI.  Procedural Matters  
   
I. BACKGROUND  

   Title IV of SMCRA, establishes an Abandoned Mine Land Reclamation (AMLR) program for the purpose of
reclaiming land and water resources adversely affected by past mining. This program is funded by a reclamation fee
imposed on coal production. Lands and waters eligible for reclamation under Title IV include those that were mined
or were affected by mining and abandoned or inadequately reclaimed prior to August 3, 1977, and for which there is
no continuing responsibility for reclamation under State, Federal, or Tribal laws.  

   Title IV provides for State or Tribal submittal to OSMRE of an AMLR program. The Secretary adopted
regulations in 30 CFR Part 870 through 888 that implement Title IV of SMCRA. Under those regulations the
Secretary is required to review reclamation plans and solicit and consider comments of State and Federal agencies
and the public. Based on such comments and review, the Secretary will determine if a State or Tribe has the ability
and necessary legislation to implement the provisions of Title IV. After making such a determination, the Secretary
may approve a State or Tribal program and grant the State or Tribe exclusive authority to administer its approved
program.  

   Ordinarily, a State or Tribe must have an approved surface mining regulatory program prior to submittal of an
AMLR program to OSMRE as required by Section 405 of SMCRA. However, on July 11, 1987, President Reagan
signed legislation that authorized the Crow, Hopi, and Navajo Tribes to obtain Abandoned Mine Land Reclamation
programs without prior approval of regulatory programs. 

   States and Indian Tribes are also allowed to request authority to conduct emergency response reclamation
activities. Guidelines for AMLR Plan provisions concerning assumption of emergency response authority were
published on September 29, 1982, 47 FR 42729 and provide the applicable criteria by which to judge the adequacy
of AMLR Plan provisions. Emergency reclamation activities are set forth in Section 410 of SMCRA. The Crow
Tribe has not requested emergency response authority.  
   
II. PROPOSED AMLR PLAN  

   In 1982 the Crow Tribe submitted to OSMRE its proposed Abandoned Mine Land Reclamation Plan under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA) (30 CFR Chapter 7, Subchapter R) as published in
the Federal Register on June 30, 1982, 47 FR 8574-28604. OSMRE requested public comment on the adequacy of
the Tribe's Plan, 47 FR 21274-21276 (May 18, 1982), and left the comment period open pending authorizing
legislation.  

   On July 11, 1987 legislation was enacted authorizing the Crow, Hopi, and Navajo Tribes to obtain abandoned mine
land reclamation program without first having to obtain approval of a Tribal surface mining regulatory program. In
response to the newly enacted legislation, OSMRE reopened its review of the Crow Tribe's Plan. OSMRE reviewed
the Plan in September 1987 and provided the Tribe suggestions for revising and updating the Plan to meet the
requirements of SMCRA. The Tribe made a number of revisions to the Plan and on September 9, 1988, resubmitted
a revised and updated Abandoned Mine Land Reclamation Plan. On the October 25, 1988 Federal Register, 53 FR
42976-42977, OSMRE announced the proposed rule and gave notice for closing the comment period. At the end of
the comment period, November 25, 1988, some comments were received but no requests were received for a hearing
or meetings. In response to minor internal comments from OSMRE the Crow Tribe revised its Plan in accordance
with OSMRE's suggestions.  

   All of the events described above are documented in the Title IV Administrative Record of the Crow Tribe. The
Administrative Record is available for public review at the OSMRE Casper Field Office in Wyoming, whose address
is listed above.  

   The proposed AMLR Plan would provide authority for the Crow Tribe to conduct a reclamation program on Crow
(Indian) lands as that term is defined in section 701(9) of SMCRA (see reference to "Indian lands" in 30 CFR
872.11(b)(3)). Indian lands occur within and outside traditional Reservation boundaries. Although there may be
certain jurisdictional limitations to the Tribe's authority to undertake certain reclamation actions outside the
Reservation, the Tribal AMLR Plan presents a variety of reclamation procedures and activities which would allow
the Tribe to undertake its reclamation program without violating the jurisdictional rights of other parties.  
   
III. ASSISTANT SECRETARY'S FINDINGS  

   The Assistant Secretary finds that the Crow Tribe submitted a Plan for the reclamation of abandoned mine lands
pursuant to the provisions of Pub. L. 100-71 and SMCRA. Based on a review of that submission, the Assistant
Secretary also finds that: 

   1. Adequate provisions were made for public comment in the development of the Plan;  

   2. Views of other Federal agencies having an interest in the Plan were solicited and considered;  

   3. The Tribe has the legal authority, policies, and administrative structure necessary to carry out the proposed Plan; 


   4. The Plan meets all the requirements of Subchapter R of 30 CFR Chapter VII regulations and of SMCRA;  

   5. The Plan meets all the requirements of all applicable Tribal and Federal laws and regulations;  

   6. The Crow Tribe has not requested authority to assume emergency response authority as set forth in Section 410
of SMCRA.  

   7. The Crow Tribe AMLR Plan, including amendments thereto, addresses all Plan requirements specified in 30
CFR 884.13.  
   
IV. PUBLIC COMMENT  

   The following comments on the Crow Tribe's Plan were received by OSMRE and considered by the Assistant
Secretary in making the determination that the Crow Tribe AMLR Plan will be approved:  

   1. A comment was received questioning the definition of Crow Tribal lands and inquired to what extent the
jurisdiction of the Crow Tribe AMLR Plan affect fee and allotted owners within the reservation boundaries.  

   OSMRE's responds that the proposed AMLR Plan would provide authority to the Crow Tribe to conduct
reclamation activities on Crow lands as defined in the Crow Code at Section 701(a)(4). This AMLR Plan cannot,
however, confer to the Tribe jurisdictional rights over lands beyond those encompassed in the definition of Indian
Lands as found at Section 701(9) of SMCRA and as interpreted by its regulations.  

   According to the SMCRA definition, Indian lands may be located either within or outside the exterior boundaries
of any Federal Indian reservation. With regard to lands located within the reservation boundaries, the SMCRA
definition expressly provides that "* * * all land, including mineral interests, within the exterior boundaries of any
Federal Indian reservation * * *" are Indian lands. Therefore, within the reservation boundaries, all lands, including
mineral interests whether they represent individual Indian allotments or lands owned in fee, are Indian lands.  

   With regard to lands located outside the reservation boundaries, the SMCRA definition does not provide clear
guidance as to whether individual Indian allotments and Tribal fee lands are to be considered Indian lands. This issue
has been and still is a source of continuing litigation. In an effort to clarify some of the controversy surrounding the
jurisdictional status under SMCRA of individual Indian allotments and Tribal fee lands, OSMRE is in the process of
promulgating a final Indian lands rule which should provide further guidance on this issue.  

   Although there may be certain jurisdictional limitation to the Tribe's authority to undertake certain reclamation
activities outside the reservation, the Tribal AMLR Plan presents a variety of reclamation procedures and activities
which would allow the Tribe to undertake the reclamation program without violating the jurisdictional rights of other
parties.  

   2. Another comment questioned if the Crow Tribe AMLR Plan defined the nature of experience necessary for staff
members who will be administering the program.  

   OSMRE's and the Crow Tribe response is that experienced management personnel currently exist within the Crow
Office of Reclamation (COR) of the Crow Tribe's Abandoned Mine Lands (AML) Program. It is the intention of
OSMRE to provide AML funds to be used to provide adequate training to the COR staff members associated with
the AML administrative and construction activities. In addition, the AMLR Plan requires that an independent
Certified Public Accountant (CPA) participate and oversee all financial management activities to assure that
accountability is maintained within the Crow Tribe AML Program.  

   3. A third comment raised a concern relative to what type of review and audit strategy would be implemented to
assure that a competent program is administered.  

   OSMRE's response is that the Crow Tribe's AML activities will be reviewed periodically by OSMRE's oversight.
The oversight activities within the Crow Tribe's financial management area will be complimented by a monthly
status report prepared by the independent CPA responsible for reviewing the financial management system. In
addition, the Crow Tribe's AML Program will fall within the purview of the Office of Management and Budget
(OMB) Circular A-128, Audits of State and Local Governments. The Circular requires that annual audits be
performed by an independent auditor in accordance with generally accepted auditing standards.  

   OSMRE presented to the Tribe comments of an editorial nature and for consistency purposes requested minor
modifications to the Plan. The Tribe subsequently made all the minor revisions suggested and resubmitted the
affected pages of the Plan. The Assistant Secretary has determined that these revisions are insignificant in nature and
accordingly require no further public comment.  
   
V. ASSISTANT SECRETARY'S DECISION  

   The Assistant Secretary for Land and Minerals Management, based on the above findings and review and
consideration of public comments, is approving the Crow Tribe AMLR Plan under the provisions of 30 CFR 884.14,
as submitted in 1982 and revised in September 1988. A new Sec. 756.17 of Part 756 is being added to 30 CFR
Chapter VII, Subchapter E -- Indian Lands Program -- to implement this decision. This approval, however, does not
encompass the emergency response authority set forth in section 410 of SMCRA.  
   
VI. PROCEDURAL MATTERS 
   
1. Executive Order No. 12291 and the Regulatory Flexibility Act  
   OSMRE examined this final rulemaking under Executive Order 12291 and has determined that on November 23,
1987, the OMB granted OSMRE an exemption from sections 3, 4, 7 and 8 of Executive Order 12291 for actions
directly related to approval or disapproval of State reclamation plans or amendments. Therefore, the action is exempt
from preparation of a regulatory impact analysis and regulatory review by OMB.  

   This rulemaking was examined pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and the
Department of Interior determined that this document will not have a significant economic effect on a substantial
number of small entities. No burden will be imposed on entities operating in compliance with the Act.  
   
2. Compliance With the National Environmental Policy Act  
   Furthermore, OSMRE determined that the approval of State and Tribal AMLR plans and amendments is
categorically excluded from compliance with the National Environmental Policy Act by the Department of the
Interior's Manual, 516 DM 6, Appendix 8, paragraph 8.4B(30).  
   
3. Paperwork Reduction Act of 1980  
   This rule does not contain information collection requirements which require approval from the Office of
Management and Budget under 44 U.S.C. 3507.  
   
Effective Date  
   The final rule is effective upon date of publication. Under 5 U.S.C. 553(d), a rule may not be made effective less
than 30 days after publication, unless, among other things, good cause exists and is published with the rule. Good
cause exists to make the final rule effective upon publication because: (1) The Crow Tribe is staffed and prepared to
administer the abandoned mine land reclamation program, and (2) OSMRE wishes to expedite grant assistance to the
Tribe to initiate reclamation work.  
   
LIST OF SUBJECTS IN 30 CFR PART 756  
   Indian lands, Abandoned Mine Land Reclamation Program.  
   
James E. Carson,  Deputy Assistant Secretary -- Land and Minerals Management.  
Date: December 21, 1988.  

PART 756 -- INDIAN TRIBE ABANDONED MINE LAND RECLAMATION PROGRAMS 

   1. The Authority citation for Part 756 is revised to read as follows:  

   Authority: 30 U.S.C. 1201 et seq. and Pub. L. 100-71.  

   2. A new Sec. 756.17 is added to read as follows:  

SEC. 756.17 APPROVAL OF THE CROW TRIBE'S ABANDONED MINE LAND RECLAMATION PLAN.  

   The Crow Tribe's Abandoned Mine Land Reclamation Plan as submitted in 1982, and resubmitted in September,
1988 is approved. Copies of the approved Plan are available at the following locations:  
   
Crow Tribal Council, Crow Office of Reclamation, P.O. Box 159, Crow Agency, Montana 59022.  
   
Office of Surface Mining Reclamation and Enforcement, Casper Field Office, Room 2128, 100 East B Street,
Casper, Wyoming 82601-1918. 

[FR Doc. 89-79 Filed 1-3-89; 8:45 am]  
BILLING CODE 4310-05-M