Revisions to the State Program Amendment Process, 61194-61206 [05-21025]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 70, Number 202 (Thursday, October 20, 2005)]
[Rules and Regulations]
[Pages 61194-61206]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-21025]



[[Page 61193]]

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Part III





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Part 732



Revisions to the State Program Amendment Process; Final Rule

Federal Register / Vol. 70, No. 202 / Thursday, October 20, 2005 / 
Rules and Regulations

[[Page 61194]]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 732

RIN 1029-AC06


Revisions to the State Program Amendment Process

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are revising our regulations pertaining to the processing of 
State program amendments submitted by a State for approval under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
The specific regulations being revised govern the standards for 
determining when proceedings that lead to the substitution of Federal 
enforcement for all or part of an approved State program should be 
initiated because of the State's failure to amend its program as 
directed. These revisions provide us with the discretion to consider 
additional relevant factors regarding the performance of the State in 
effectively maintaining its program before determining that proceedings 
leading to the substitution of Federal enforcement are warranted. We 
are also revising our regulations that govern the time periods and 
schedule for processing State program amendments.

EFFECTIVE DATE: November 21, 2005.

FOR FURTHER INFORMATION CONTACT: Andrew DeVito, Office of Surface 
Mining Reclamation and Enforcement, MS-252-SIB, U.S. Department of the 
Interior, 1951 Constitution Avenue, NW., Washington, DC 20240; 
Telephone: 202-208-2701. E-mail: adevito@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background Information on the Rulemaking
II. Discussion of the Revisions and Our Response to the Comments 
Submitted
III. Procedural Matters and Required Determinations for This Rule

I. Background Information on the Rulemaking

Why are we revising our regulations?

    On December 3, 2003 (68 FR 67776), we published proposed revisions 
to our regulations that govern the processing of State program 
amendments submitted by a State for approval under SMCRA. We proposed 
the revisions because of a perceived need to provide OSM with 
discretion to resolve issues affecting approved State regulatory 
programs, their maintenance, and amendment. The revisions will allow us 
to focus our attention and resources on State program deficiencies that 
have adverse on-the-ground effects, or indicate that the State may not 
have the capability or intent to effectively administer and maintain 
all or part of its approved program. Our experience in processing State 
program amendments over the past 20 years has demonstrated a need for 
greater discretion when working in partnership with the States to 
maintain an effective nationwide program for the regulation of surface 
coal mining and reclamation operations. Recent developments with regard 
to the availability of future funding for States with approved programs 
have added to the need for revising our regulations. These reasons are 
discussed in greater detail in Section II where we describe the 
revisions we are making, the comments received on the proposed 
revisions, and our response to them. Before proceeding to Section II, 
we would like to provide some of the background information necessary 
for a better understanding of the regulatory plan established by SMCRA 
and the need for the revisions we are adopting today.

What is an approved State program?

    Section 503 of SMCRA grants each State in which there are or may be 
surface coal mining and reclamation operations conducted on non-Federal 
lands the right to assume exclusive jurisdiction (primacy) over those 
operations. To assume primacy, the State must submit to the Secretary 
of the Interior (Secretary) for approval, a State program that 
demonstrates that the State has the capability for carrying out the 
provisions of SMCRA. As of the date of this rulemaking, 24 States have 
primacy. The implementing regulations at 30 CFR part 732 (hereinafter 
referred to as Part 732) provide the criteria and procedures for 
decisions to approve or disapprove submissions of State programs.

What is a State program amendment?

    Although SMCRA does not specifically address the State program 
amendment process, by regulation at Sec.  732.17, we provided the 
criteria and procedures for amending State programs in anticipation of 
a need to modify the programs as conditions or national rules change. 
For various reasons, such as legislative changes to the provisions of 
SMCRA, litigation resulting in adverse court decisions, or changes in 
coal mining technology, we are required to revise our regulations. As a 
result, all 24 States with approved State programs may be required to 
amend their programs in order to be ``no less effective'' than the OSM 
regulatory program. Also, States may decide to amend their programs on 
their own initiative.
    If we determine that a State program amendment is necessary, then, 
as required by Sec.  732.17(d), we must notify the State regulatory 
authority of the need to amend its approved program. Within 60 days 
after notification, the State must submit (1) a proposed written 
amendment, or (2) a description of an amendment and a timetable for 
enactment that is consistent with established administrative or 
legislative procedures in the State. Pursuant to Sec.  732.17(f)(2), 
the Director of OSM (Director) must begin proceedings under 30 CFR part 
733 (hereinafter referred to as Part 733) if the State regulatory 
authority does not submit the proposed amendment or a description and 
timetable within the 60 days, does not subsequently comply with the 
submitted timetable, or if the amendment is not approved.
    Another situation in which the Director may be required to begin 
Part 733 proceedings under 30 CFR 732.17(f)(2) involves an obligation 
called a ``required amendment.'' When a deficiency has been identified 
in a State program and a State's proposed amendment to remedy that 
deficiency is incomplete, (i.e., when it fails to include all necessary 
elements or supporting documentation but does not actually conflict 
with the corresponding Federal requirement), we issue a final rule 
establishing additional requirements that the State must meet by 
submitting a new amendment. The new amendment, called a ``required 
amendment,'' must resolve any deficiencies and noted inconsistencies. 
We consider a final rule imposing a ``required amendment'' to be the 
equivalent of the Part 732 notification required by Sec.  732.17(c) and 
(d) and, therefore, subject to the provisions of Sec.  732.17(f)(2) if 
the State fails to comply with the terms of a required amendment.\1\
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    \1\ See OSM Directive STP-1 (July 31, 2000) at 4.e, 4.f, and 
4.1.
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What is a Part 733 proceeding?

    If the Director has reason to believe that a State is not 
effectively implementing, administering, maintaining, or enforcing any 
part of its approved State program, then, under Sec.  733.12(b), the 
Director must promptly notify the State regulatory authority in 
writing. The notification must provide sufficient information to allow 
the State

[[Page 61195]]

to determine what portions of the program the Director believes are not 
being effectively implemented, administered, maintained, or enforced; 
provide the reasons for such belief; and specify the time period for 
the State to accomplish any necessary remedial actions. If, after 
certain hearing procedures, the Director finds under Sec.  733.12(e) 
that (1) the State has failed to effectively implement, administer, 
maintain, or enforce all or part of its approved State program, and (2) 
the State has not demonstrated its capability and intent to administer 
the State program, the Director must take one of the following actions. 
The Director must either initiate direct Federal enforcement of all or 
part of the State program; or recommend to the Secretary that he/she 
withdraw approval of the State program, in whole or in part, and 
establish a Federal program for the State.

What are the consequences of a Part 733 Proceeding?

    The substitution of Federal enforcement under Sec.  733.12(e) for 
all or part of an approved State program results in substantial 
disruption to the State, the Federal government, and the coal industry. 
We have initiated a Part 733 action ten times in our history. We 
initiated action under Part 733 in Oklahoma (1981, 1983, and 1993), 
Kansas (1983), Tennessee (1983), Montana (1993), Utah (1995), West 
Virginia (2001), Missouri (2003), and Ohio (2005). In the Montana, 
Utah, Kansas, West Virginia, and the 1981 and 1993 Oklahoma actions, 
the issues were resolved without Federal takeover of any part of the 
State programs. In three cases, we did take over partial enforcement of 
the State program--Oklahoma in 1984, Tennessee in 1984, and Missouri in 
2003. In Oklahoma, the State took action to address the deficiencies, 
and full authority was returned to the State. In Tennessee, after we 
took over partial enforcement, the State chose to terminate its 
approved program and repealed the Tennessee Coal Surface Mining Act and 
its implementing regulations. We promulgated a Federal program for that 
State in 1984. After implementing the Federal program, we were required 
under section 504(d) of SMCRA to review all the permits issued by the 
State of Tennessee under the standards of the new Federal program. All 
coal operators who had posted bonds with the State for permits issued 
under the approved State program were required to post new bonds 
payable to the United States or execute assignments of the existing 
bonds. See 49 FR 38874 (October 1, 1984). The substitution of the 
Federal program in Tennessee resulted in delays in processing and 
issuing new coal permits in the State.
    With regard to the situation in Missouri, on July 21, 2003, the 
Governor of Missouri notified us that the State was experiencing 
difficult budgetary and revenue shortfalls. As a result of the 
situation, the Governor requested assistance with permit reviews, 
inspection activities, and general oversight of the active coal mining 
operations in the State. The Governor indicated that he was hopeful his 
request would be temporary and that he would continue to work with the 
State legislature in an attempt to assure adequate funding for all 
State program responsibilities.
    On August 4, 2003, we notified the Governor that we were obligated, 
in accordance with Sec.  733.12(e), to substitute Federal enforcement 
for those portions of the Missouri program that were not fully funded 
and staffed. We cited problems with the State's implementation of the 
Missouri program in several areas including inspection, enforcement, 
permitting, and bonding activities. As a result of substituting Federal 
enforcement, we became responsible for, among other things, 
approximately 40 permitting actions, 24 inspectable units, and an 
unsuitability petition filed on October 20, 2003.
    Missouri recently addressed the issues leading to the substitution 
of Federal enforcement by completing certain remedial actions. On May 
27, 2005, the Governor petitioned OSM for the termination of Federal 
enforcement, we are in the process of reviewing the petition. For more 
details on the Part 733 action in Missouri, see 68 FR 50944, August 22, 
2003, and 69 FR 19927, April 15, 2004.
    The most recent Part 733 action was initiated on May 4, 2005, when 
we sent a letter to the State of Ohio concerning problems with its 
alternative bonding system. That matter is still pending.
    While the Tennessee Federal program resulted from the termination 
of the State program by the State, and Federal enforcement in Missouri 
resulted from budgetary problems within the State, and neither resulted 
from a delinquent State program amendment, both provide an illustration 
of the difficulties and hurdles we face when we are required to take 
over a State program or substitute partial Federal enforcement.

What are the problems with the current regulations?

    As previously mentioned, our regulations at Sec.  732.17(f)(2) 
require us to begin proceedings against a State under Part 733 when the 
State fails to (1) submit a requested amendment or description and 
timetable for enactment within 60 days from the receipt of 
notification, (2) comply with the submitted timetable, or (3) obtain 
approval of the program amendment.
    While there may be circumstances in which the substance of an 
outstanding State program amendment is such that the State's failure to 
make the required submissions or obtain approval of the amendment may 
warrant proceedings under Part 733, that is not the case in most 
instances. As required by section 503(a)(1)-(7) of SMCRA and 30 CFR 
731.14(g), each State program is required to contain approximately 17 
systems involving permitting, lands unsuitability petitions, 
administrative and judicial review, inspection and enforcement, civil 
penalties, etc. Most deficiencies in State programs that we identify 
are either minor in nature or do not render any major system within an 
approved State program inoperable or ineffective, in whole or in 
part.\2\ Nevertheless, under the standards of Sec.  732.17(f)(2), the 
Director has no discretion and must begin proceedings under Part 733.
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    \2\ For an example of a required State program amendment, see 30 
CFR 938.16(qqq) requiring that ``[b]y January 6, 1998, Pennsylvania 
* * * submit a proposed amendment to * * * require that any 
applications for permit renewal be submitted at least 120 days 
before the permit expiration date.'' Also, see 30 CFR 948.16(lllll) 
requiring that ``[b]y February 20, 2001, West Virginia must submit 
either a proposed amendment or a description of an amendment to * * 
* provide that * * * soil substitute material * * * be equally 
suitable for sustaining vegetation as the existing topsoil and the 
resulting medium is the best available in the permit area to support 
vegetation.''
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    The standards for beginning Part 733 proceedings in all other 
circumstances are found at Sec.  733.12(b), which specifies that:

    If the Director has reason to believe that a State is not 
effectively implementing, administering, maintaining or enforcing 
any part of its approved State program, the Director shall promptly 
notify the State regulatory authority in writing.

By requiring the commencement of a Part 733 proceeding, the provisions 
of Sec.  732.17(f)(2) seem to create an irrebuttable presumption that, 
under Sec.  733.12(b), the ``Director has reason to believe that a 
State is not effectively implementing, administering, maintaining or 
enforcing any part of its approved State program'' when the timetable 
for submission has not been met or the amendment has not been approved. 
Once we initiate proceedings under Part 733, the Director may not 
substitute direct Federal enforcement for all or part of the State 
program or

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recommend to the Secretary that he/she withdraw approval of the State 
program, unless the Director makes the findings required by Sec.  
733.12(e). In that regard, the Director must find that the State has 
both failed to implement, administer, maintain or enforce effectively 
all or part of its approved State program, and has not demonstrated its 
capability and intent to administer the State program. In a situation 
where there is only one outstanding amendment that is administrative in 
nature, with no resulting adverse on-the-ground effects, it is unlikely 
that the Director would be able to make the two findings required by 
Sec.  733.12(e); nevertheless, under the current regulations, the 
Director would still be required to begin Part 733 proceedings.

How were the regulations in Sec.  732.17(f) developed?

    The regulations in Sec.  732.17(f) were proposed on September 18, 
1978 (43 FR 41662, 41678) and issued as final rules on March 13, 1979 
(44 FR 14902, 14967), prior to OSM's having any experience in 
processing State program amendments. Section 732.17(f) was written 
under the assumption that, once a State had an approved State program, 
revisions to that program would be few and far between. In fact, while 
section 503 of SMCRA sets forth detailed information on the initial 
submission, resubmission, and approval of State programs, no detailed 
guidance is provided for amending an approved State program. The only 
place in SMCRA where amendments to approved State programs are 
discussed is in section 102(i) which states that one of the purposes of 
SMCRA is to ``assure that appropriate procedures are provided for * * * 
the public participation in the development, revision, and enforcement 
of regulations, standards, reclamation plans, or programs established 
by the Secretary or any State under this Act.''
    The 1979 regulations at Sec.  732.17(f)(1) specified that:

    If the State regulatory authority does not propose an amendment 
within 60 days from the receipt of the notice, or the amendment is 
not approved under this Paragraph, the Director shall begin 
proceedings under 30 CFR [part] 733, to either enforce that part of 
the State program affected or withdraw approval, in whole or in 
part, of the State program and implement a Federal program.

    We proposed revising Sec.  732.17(f)(1) on December 4, 1981 (46 FR 
59482, 59487) because of the ``difficult administrative burden'' it 
imposed on the States by requiring them to submit a written amendment 
within 60 days after notification by the Director. The 1981 proposed 
revision allowed the State the option of either submitting the State 
program amendment within 60 days ``or a description of an amendment to 
be proposed that meets the requirement of the Act, and this chapter, 
and a timetable for enactment which is consistent with established 
administrative or legislative procedures in the State.'' Some States, 
such as West Virginia, must have their regulations approved by the 
State legislature. One comment was submitted on the proposed revision 
and it was in support of the change. The proposed revision was adopted 
on June 17, 1982 (47 FR 26358) and it is the language that is currently 
in Sec.  732.17(f)(2).

Why are so many State program amendments required?

    As previously indicated, the regulations in Part 732 were most 
likely written under the assumption that, once a State program was 
approved, there would be few amendments required. Unfortunately, that 
has not been the case. The main reason for this is that nearly every 
time we issue a substantive Federal regulation, it ends up in 
litigation. As the United States Court of Appeals for the District of 
Columbia Circuit stated in 1991 in National Wildlife Federation v. 
Lujan, 950 F.2d 765, 767 (D.C. Cir. 1991), ``[a]s night follows day, 
litigation follows rulemaking under this statute.'' The ongoing 
litigation has resulted in a substantial number of revisions to the 
Federal regulations.
    Shortly after the permanent program rules were issued in 1979, 
challenges to them were filed in court by the coal industry, several 
States, and citizen and environmental groups. The court resolved those 
challenges in three opinions issued in 1980. While those opinions were 
on appeal to the United States Court of Appeals for the District of 
Columbia Circuit, OSM announced that it would promulgate revised 
regulations in order to allow the States and operators greater 
flexibility in how they achieved compliance with SMCRA. The main thrust 
of the revisions was a change from regulations that contained design 
criteria to those that contained performance standards. The revised 
regulations were in turn challenged by various citizens and 
environmental groups as well as coal industry representatives. Some 
challenged rules were upheld, while others had to be rewritten by OSM. 
Each time a rule had to be rewritten, States had to amend their 
programs. Currently, two significant OSM rules are the subject of 
pending litigation (Valid Existing Rights and Ownership and Control). 
Both will require the submission of State program amendments from the 
24 States with approved programs.
    Beginning in 1991, we have tracked the number of State program 
amendments processed each year in our annual report. In the past 14 
years, 1991-2004, a total of 1378 State program amendments (proposed 
and final) have been published in the Federal Register, for an average 
of approximately 100 per year. Each State program amendment may contain 
more than one issue. A December 27, 2001, final rule (66 FR 67010) 
issued on a Pennsylvania State program amendment analyzed over 140 
separate issues and ordered the State to submit an additional 47 
required amendments. Recently, a final rule (70 FR 8002; February 16, 
2005) issued on a Montana State program amendment analyzed revisions to 
nine sections of the Montana Code Annotated. These examples give an 
indication of the work involved for both the States and OSM in 
maintaining State programs. This amount of work was never contemplated 
when the provisions of Sec.  732.17(f) were promulgated in 1979 or were 
revised in 1982.
    We believe that, in situations where the State has not submitted 
and obtained approval of an amendment within certain time periods, a 
less disruptive and more effective way to obtain the delinquent 
amendment is to continue discussions with the State, for a reasonable 
period of time, in an attempt to resolve issues rather than to 
automatically begin formal proceedings under Part 733. To automatically 
begin proceedings under Part 733, as currently required by Sec.  
732.17(f)(2), damages the working relationship we have with a State 
that has voluntarily agreed to work in partnership with OSM to 
implement and administer the provisions of Title V of SMCRA. This is 
particularly so when the nature of the delinquent amendment does not 
warrant such action.

II. Discussion of the Revisions and Our Response to the Comments 
Submitted

What are the revisions to Sec.  732.17(f)(2)?

    Under the existing regulation in Sec.  732.17(f)(2), the Director 
is required to begin proceedings either to enforce that part of the 
State program affected or to recommend to the Secretary that he/she 
withdraw approval, in whole or in part, and implement a Federal 
program, if (1) the State fails to submit a requested amendment or 
description and timetable for enactment within 60 days from the receipt 
of notification, (2) the State fails to comply with the submitted

[[Page 61197]]

timetable, or (3) the amendment is not approved.
    In addition to making certain non-substantive editorial changes for 
clarity, this rule revises that requirement by adding the words ``if 
the Director has reason to believe that such action is warranted 
because the State is not effectively implementing, administering, 
maintaining or enforcing all or part of its approved State program.'' 
The revised rule language in Sec.  732.17(f)(2) will read as follows:

    If the State regulatory authority does not submit the 
information required by paragraph (f)(1), or does not subsequently 
comply with the submitted timetable, or if the resulting proposed 
amendment is not approved under this section, then the Director must 
begin proceedings under 30 CFR part 733 if the Director has reason 
to believe that such action is warranted because the State is not 
effectively implementing, administering, maintaining or enforcing 
all or part of its approved State program.

    By adding the words ``if the Director has reason to believe that 
such action is warranted because the State is not effectively 
implementing, administering, maintaining or enforcing all or part of 
its approved State program,'' we are adopting the same standard set 
forth in Sec.  733.12(b) that is used for commencing a Part 733 
proceeding in all other situations. Therefore, under the revised 
regulations, in addition to the State's failure to (1) submit a 
requested amendment or description and timetable for enactment within 
60 days from the receipt of notification, (2) comply with the submitted 
timetable, or (3) obtain OSM approval of an amendment submitted in 
response to the notification under paragraph (f)(1), there must also be 
a determination by the Director that commencement of a Part 733 
proceeding is warranted because of circumstances that tend to indicate 
that the State is not effectively implementing, administering, 
maintaining or enforcing all or part of its approved State program. 
Those circumstances may be that one amendment of critical importance 
has been outstanding for a short period of time or they may be that a 
series of non-critical amendments have been outstanding for a long 
period of time with little or no effort on the part of the State to 
amend its program. Under our revision, the mere failure to meet a 
timetable, by itself, will no longer be sufficient to require the 
commencement of a Part 733 proceeding.
    In the proposed rule, we had included a cross-reference to Sec.  
732.17(h)(8) in Sec.  732.17(f)(2). Section 732.17(h)(8) provides for 
the submission of revised State program amendments when the original 
submission is not approved. Section 732.17(f)(2), as it currently 
stands, is silent on the submission of revised amendments submitted 
pursuant to Sec.  732.17(h)(8). There was no discussion of the 
inclusion of the cross-reference in the proposed rule, but the intent 
was to add clarity to the regulations by tying the two provisions 
together. After further consideration, we have concluded that, for two 
reasons, the cross-reference should not be included in the final rule 
language. First, the cross-reference is unnecessary because Sec.  
732.17(f)(2) pertains to a situation in which an amendment is ``not 
approved under this section.'' The term ``this section'' refers to all 
of Sec.  732.17, which includes paragraphs (a)-(h).
    Second, there are situations in which our decision not to approve 
an amendment or amendment provision does not create an obligation on 
the part of the State to resubmit a revised version of the amendment or 
amendment provision. Such situations can occur when a State submits an 
amendment that, if approved, would make the approved State program less 
stringent than the Act or less effective than the Secretary's 
regulations. Under Sec.  732.17(g), if we do not approve an amendment, 
it does not take effect and does not become part of the State program. 
Therefore, in the absence of a requirement to submit a new amendment, 
established by OSM in a final rule or other Part 732 notification, the 
State has no obligation to submit a revised version of an amendment 
that we did not approve. If we included the cross-reference to Sec.  
732.17(h)(8) in Sec.  732.17(f)(2), and if we made the corresponding 
changes to Sec.  732.17(h)(8) that we proposed, then the State would be 
obligated to submit a revised version of an amendment that we did not 
approve even if that revision is not required to make the State program 
no less stringent than the Act or no less effective than the 
Secretary's regulations.
    One recent example of a situation in which there was no need for 
the State to resubmit an amendment that we did not approve involved a 
proposed State program amendment providing for the construction of 
durable rock fills with erosion protection zones (EPZs). EPZs are 
extensions of underdrains within durable rock fills that are used to 
control erosion, dissipate runoff from the fill, and enhance the 
stability of the durable rock fill. Under the proposed amendment, an 
EPZ could remain after mining if it was approved in the reclamation 
plan. Because the EPZ resulted in additional stream loss without any 
apparent environmental benefit, the U.S. Environmental Protection 
Agency (EPA) conditioned its concurrence in our approval of the 
amendment on the addition of a requirement that all EPZs be removed 
after mining. In response to this EPA requirement, we did not approve 
the phrase, ``Unless otherwise approved in the reclamation plan.'' In 
the absence of that clause, the remaining portion of the proposed State 
program amendment, which we approved, requires operators to remove EPZs 
after mining. Therefore, there was no need for the State to amend its 
regulatory program because, as provided by 30 CFR 732.17(g), the clause 
that we did not approve never became part of the State program.
    Finally, we have inserted the words ``resulting proposed'' before 
``amendment'' in paragraph (f)(2) to clarify that the provisions of 
that clause of that paragraph apply only to decisions on amendments 
that States propose in response to Part 732 notifications, not to 
decisions on amendments that States propose on their own initiative. 
This editorial clarification does not alter the meaning of the existing 
rule.

What were the comments submitted on our proposed revisions to Sec.  
732.17(f)(2)?

    Two commenters stated that the proposal is irresponsible, in direct 
conflict with SMCRA, and is contrary to law because it is an abrupt 
reversal of agency regulatory policy without a rational and adequate 
basis. They asserted that the proposal eliminates a former regulation 
deemed necessary to assure proper implementation of SMCRA without 
replacing the removed provision with another equally permissible and 
effective mechanism for satisfying the Congressional goal.
    We disagree. Federal courts have held that an agency's rules, once 
adopted, are not frozen in place. An agency may alter its rules in 
light of its accumulated experience in administering them. An agency 
must, however, offer a reasoned explanation for the change. Citizens 
Awareness Network, Inc. v. United States, 391 F.3d 338, 352 (1st Cir. 
2004) (and cases cited therein). If an agency changes its course by 
rescinding a rule, it is obligated to supply a reasoned analysis for 
the change beyond that which may be required when an agency does not 
act in the first instance. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. 
Auto. Ins. Co., 463 U.S. 29, 42 (1983). In reviewing actions by OSM to 
promulgate national rules, a court will use the criteria specified in 
section 526(a)(1) of SMCRA to determine if the

[[Page 61198]]

action was arbitrary, capricious, or otherwise inconsistent with law. 
In making that determination, the court will look to the authorizing 
statute, here SMCRA, to determine whether Congress has directly spoken 
to the precise question at issue. If the statute is silent or 
ambiguous, the court typically defers to the agency's reasoned 
interpretation to determine if the agency's action is based on a 
permissible construction of the statute. Pennsylvania Coal Ass'n v. 
Babbitt, 63 F.3d 231, 236 (3rd Cir. 1995) (and cases cited therein).
    SMCRA does not specify any process for amending an approved State 
program other than the requirement for public participation found in 
section 102(i). The existing provisions in Sec.  732.17, including the 
submission/approval process and time periods, were promulgated by OSM 
as permissible under the authority provided in SMCRA, but not mandated 
by SMCRA or its legislative history. The process in Sec.  732.17(f)(2) 
requiring a Part 733 proceeding was initially proposed in 1978 and 
adopted in 1979 before OSM had extensive experience in processing State 
program amendments. Neither the preamble to the 1978 proposed rule nor 
the preamble to the 1979 final rule gives any explanation as to why 
Sec.  732.17(f)(1) required the Director to begin Part 733 proceedings 
without first going into the reasoned determination required by Sec.  
733.12(b) for all other types of State deficiencies. The preambles give 
no indication the drafters of the regulations ever contemplated the 
volume of State program amendments that would be required by OSM, or 
the possibility that a delinquent program amendment might be so 
inconsequential to the effectiveness of the approved State program that 
Part 733 proceedings would not be warranted.
    Although we are revising a longstanding agency standard, one based 
on timetables, we are replacing it with an OSM standard that is equally 
longstanding and one more rationally related to the findings required 
by Sec.  733.12(e). The new standard for Sec.  732.17(f)(2) is the same 
as the standard found in Sec.  733.12(b) for determining when Part 733 
proceedings should be initiated for all other types of State 
deficiencies. Adoption of this standard will give us the discretion 
needed to consider other relevant factors in determining when to 
initiate Part 733 proceedings against a State. Those factors include 
the importance of the outstanding amendment to the effectiveness of the 
approved State program, the effect its absence is having on the 
environment and public health and safety, and the lack of any 
reasonable explanation for failing to comply with submission 
requirements. Our decision to initiate Part 733 proceedings will no 
longer be controlled primarily by timetables.
    We proposed our revisions after many years of experience in 
processing State program amendments, and with a firm understanding of 
how difficult it can be for a State administrative agency to submit an 
amendment compatible with the Federal regulation, particularly when the 
submission requires action by the State legislature. In the preamble to 
the December 3, 2003, proposed rule (68 FR 67777), we stated that:

    [I]n situations where the State has not submitted and obtained 
approval of a required amendment, a less disruptive and more 
effective way to obtain the required amendment is to work with the 
State at the staff level to discuss problems and resolve issues 
rather than automatically begin formal proceedings under Part 733. 
To automatically begin proceedings under Part 733, as currently 
required by 30 CFR 732.17(f)(2), damages the working relationship we 
have with a State that has voluntarily agreed to work in partnership 
with OSM to implement and administer the provisions of Title V of 
SMCRA.

    SMCRA is very clear with regard to the State-Federal working 
relationship. Section 101(f) of SMCRA provides that the primary 
governmental responsibility for developing, authorizing, issuing, and 
enforcing regulations for surface coal mining and reclamation 
operations should rest with the States. Section 102(g) of SMCRA 
specifies that one of the purposes of SMCRA is to assist the States in 
developing and implementing a program to achieve the purposes of SMCRA.
    It should be noted that, in support of the State-Federal working 
relationship envisioned by SMCRA, section 705(a) authorizes the 
Secretary to make an annual grant of up to 50 percent of the cost 
incurred by a State in administering and enforcing its approved 
regulatory program (a Title V grant). In addition, if a State has an 
approved State program under section 503 of SMCRA, and has an approved 
State Abandoned Mine Reclamation Program submitted under section 405(b) 
of SMCRA, then the State is entitled to an annual grant under section 
405(c) for the reclamation of abandoned mine lands within the State (a 
Title IV grant). As an example of how this works, in Fiscal Year 2004, 
the State of West Virginia received a $10,520,169 Title V grant from 
OSM for regulating surface coal mining under its approved State 
program. That sum was determined to be 50 percent of the cost of 
regulating surface coal mining within West Virginia. The State 
appropriated and spent an additional $10,520,169 of its own money to 
cover the remaining 50 percent of the regulatory program cost. As an 
inducement to, and in consideration for assuming Title V regulatory 
responsibility and spending $10,520,169 of its own funds, the State 
received a Title IV abandoned mine land reclamation grant of 
$33,040,900.
    The ability to make Title IV grants available is dependent on the 
collection of a reclamation fee established by section 402(a) of SMCRA. 
The fee is assessed against each ton of coal produced. The authority to 
collect this fee was scheduled to expire on September 30, 2004, but was 
extended through June 30, 2005, by Pub. L. 108-447, then through 
September 30, 2005, by Pub. L. 109-13, and most recently through June 
30, 2006, by the Department of the Interior, Environment, and Related 
Agencies Appropriations Act, 2006 (Pub. L. 109-54). At the writing of 
this rule, the prospects for the reauthorization of the reclamation fee 
beyond that date remain uncertain as do the prospects for Title IV 
grants in future years as existing funds are disbursed and no 
additional funds are collected.\3\ If Title IV grant money is no longer 
available, the incentive for a State to continue to regulate surface 
coal mining operations at considerable expense to the State will be 
diminished. The threat inherent in a Part 733 proceeding lies not only 
in the resulting public embarrassment to the State but also in the 
potential loss of its approved State program and eligibility for Title 
IV grant money. If Title IV grant money is no longer available, the 
leverage we currently have from the threat of a Part 733 proceeding and 
the denial of grant money will be substantially diminished.
---------------------------------------------------------------------------

    \3\ During calendar year 2004, at least seven reauthorization 
bills (H.R. 3778, H.R. 3796, H.R. 4529, S. 2049, S. 2086, S. 2208, 
and S. 2211), were introduced in Congress but none were enacted into 
law. As of August 2005, three reauthorization bills (H.R. 1600, H. 
R. 2721, and S. 961) have been introduced in Congress but none have 
been enacted into law.
---------------------------------------------------------------------------

    The possible loss of future Title IV grant money, and with it the 
incentive for a State to keep its approved regulatory program, provide 
another reason to revise our regulations. The revisions will provide 
the Director with the discretion needed to manage the State program 
amendment process and resolve issues with the States in a less 
confrontational manner.
    Two commenters stated that the proposed rule would eliminate the 
current mandatory obligation (nondiscretionary duty) under Sec.  
732.17(f)(2) and section 504(a) of

[[Page 61199]]

SMCRA to commence proceedings to substitute Federal enforcement for all 
or part of an approved State program in the event of a failure on the 
part of the State regulatory authority to amend its approved State 
program. The commenters stated that the proposed revisions would 
significantly erode the accountability of the individual State 
regulatory programs, and, if adopted, would be in direct and 
irreconcilable conflict with the intent of Congress. In this regard, 
one commenter stated, Congress intended that the State regulatory 
programs approved under sections 503(a)(1)-(7) of SMCRA be maintained, 
administered, and enforced consistently with the Secretary's 
regulations and with the Secretary's mandatory obligations under 
sections 504 and 521 of SMCRA. One commenter stated that the mandatory 
duty in Sec.  732.17(f)(2) to initiate a Part 733 proceeding follows 
directly from the mandatory duty in section 504(a)(3) of SMCRA. Where a 
State fails to make a timely submission of a required program 
amendment, it has ``failed to * * * maintain its approved State 
program'' within the meaning of section 504(a)(3). At that point, the 
commenter stated, section 504(a)(3) does not give the Secretary 
discretion regarding what to do. It expressly mandates that the 
Secretary ``shall'' set in motion the process for promulgation and 
implementation of a Federal program. The commenter stated that the 
current, mandatory version of Sec.  732.17(f)(2) is faithful to that 
mandatory statutory duty. The proposed revisions to Sec.  732.17(f)(2), 
which would make the initiation of a Part 733 proceeding discretionary, 
would impermissibly conflict with the mandatory duty under section 
504(a)(3) of SMCRA.
    We disagree. Our revisions to Sec.  732.17(f)(2) do not eliminate 
the Secretary's mandatory duty under sections 504(a)(3) and 521 of 
SMCRA. Section 504(a)(3) requires the Secretary to promulgate and 
implement a Federal program for a State if the State ``fails to 
implement, enforce, or maintain its approved State program.'' Section 
521(b) provides for Federal enforcement of all or part of an approved 
State program if the Secretary has reason to believe that violations of 
all or any part of the State program result from a failure of the State 
to enforce its program effectively. The provisions of section 504(a)(3) 
are implemented by our regulations at 30 CFR Parts 733 and 736; and the 
provisions of section 521(b) are implemented by our regulations at 30 
CFR Parts 733, 842, and 843. Those regulations are not being revised by 
this rule.
    Our revisions to Sec.  732.17(f)(2) do remove the mandatory 
requirement to begin Part 733 proceedings solely on the basis of a 
delinquent State program amendment. We are replacing that requirement 
with a process that requires a reasoned determination that Part 733 
proceedings are warranted. Revised Sec.  732.17(f)(2) will continue to 
lead to the same proceedings under Sec. Sec.  733.12(b) and (e) as do 
the existing regulations in Sec.  732.17(f)(2), but only after the 
Director has made that determination. By inserting the term ``warrant'' 
in Sec.  732.17(f)(2), our revisions more closely align the standard 
for action under Sec.  732.17(f)(2) with the standards of Sec.  
733.12(a)(2), ``facts which * * * establish the need for evaluation,'' 
with the standards of Sec.  733.12(b), ``reason to believe that a State 
is not effectively * * * maintaining * * * its approved State 
program,'' and with the factors specified in Sec.  733.13 for 
determining whether to substitute Federal enforcement.
    We do not believe that our revisions will erode the accountability 
of the individual States. The revised provisions in Sec.  732.17(f)(2) 
incorporate Part 733 by reference and, therefore, provide for Federal 
enforcement when required. Section 733.12(a)(1) requires the Director 
to evaluate the administration of each State program annually, and 
section 733.12(a)(2) allows any interested person to request a State 
program evaluation. There remain, therefore, effective safeguards for 
State accountability.
    One commenter stated that our proposed rule implicitly assumes that 
OSM would not have sufficient ``reason to believe'' that a State is 
violating SMCRA even though the State has failed to correct the 
deficiencies in OSM's Part 732 notification for more than 60 days, in 
violation of the deadline in Sec.  732.17(f)(2). The commenter stated 
that this is an even more extreme view than OSM took in West Virginia 
Highlands Conservancy v. Norton, 161 F. Supp. 2d 676 (S.D. W. Va. 
2001). In that case, in the government's June 29, 2001, Memorandum in 
Support of Its Motion to Dismiss, we stated that:

    When a State fails to correct the deficiencies identified in the 
Part 732 notification to the State, OSM has reason to believe that 
the State is failing to effectively maintain its approved program, 
which is one of the thresholds for taking action under 30 CFR 
733.12(b).

    We acknowledge that in the past we have taken that position. We 
took it because the language in existing Sec.  732.17(f)(2) requires 
the commencement of Part 733 proceedings. Part 733 requires the 
Director to notify the State in writing ``if the Director has reason to 
believe that a State is not effectively * * * maintaining * * * its 
approved State program.'' By implication, therefore, a failure under 
Sec.  732.12(f)(2) results in ``a reason to believe'' under Part 733. 
Long experience has shown that if the State fails to meet a deadline or 
otherwise comply with the requirements of Sec.  732.12(f)(2), there may 
be reasons for the failure which indicate that the failure is something 
other than the State's inability or unwillingness to effectively 
maintain any part of its approved State program. In the past, those 
reasons have included disagreements with OSM on the interpretation and 
intent of the program amendment that was submitted, State legislative 
and regulatory procedures that prohibited the State from complying in a 
timely fashion, and concerns by the State about complying with a Part 
732 notification based on a Federal rule that is being litigated by 
both the environmental community and the coal industry.
    Since 1982, the regulations in Part 733, which implement the 
provisions of section 504(a) of SMCRA, have used the terms 
``effectively'' in Sec. Sec.  733.12(b) and (e), and ``adequately'' in 
Sec.  733.12(d) indicating that something less than perfect performance 
by the State is acceptable. In other words, not all defects in 
maintenance rise to the level where the Director has ``reason to 
believe'' that the State is failing to effectively maintain its 
program. To warrant action under Part 733, something more is needed 
than the mere failure to meet a timetable. Factors that could raise the 
defect in maintenance to an unacceptable level might be the importance 
of the outstanding amendment to the integrity and effectiveness of the 
State program, the effect its absence is having on the environment and 
public health and safety, or the lack of any mitigating circumstances 
for failing to comply with submission requirements. It is precisely 
because not all defects in maintenance do in fact provide a ``reason to 
believe,'' and because there may be mitigating circumstances for the 
noncompliance or delayed compliance by a State that we are revising 
Sec.  732.17(f)(2) in order to eliminate the irrebuttable presumption 
that ``reason to believe'' exists within the scope of Sec.  733.12(b).
    Two commenters stated that the current rulemaking is proposed 
against a backdrop of systemic failures, on the part of the Secretary 
and OSM, to comply with the current regulatory

[[Page 61200]]

mandate to commence Part 733 proceedings in the face of a State's 
refusal to submit required program amendments. To back their 
assertions, one commenter referred to a situation in the State of West 
Virginia where the State failed for 10 years to submit a required 
amendment to adequately fund its bonding program. In that case, 
citizens sued OSM in Federal court under the citizen suit provisions of 
section 520 of SMCRA in order to force OSM to take over the West 
Virginia bonding program. The second commenter referred to an issue in 
the Commonwealth of Kentucky and alleged that the Commonwealth had 
refused, over a period of years and in direct defiance of repeated OSM 
demands, to amend the State program concerning the exemption of public 
roads from the definition of ``affected area.''
    We acknowledge that action under Sec.  732.17(f)(2) has been taken 
only in limited instances even when the situation may have called for 
more timely and forceful action. Our reluctance to begin Part 733 
proceedings should not be construed as an indication that we took no 
action to remedy State program deficiencies, because we dedicate 
considerable resources to oversight and the State program amendment 
process. Typically, discussions between OSM and the States on program 
amendments begin before submission, and continue throughout the review 
process that follows submission of the amendments. The communications, 
negotiations, and meetings between the State and OSM staff are, in many 
ways, equivalent to those required in Sec. Sec.  733.12(b) and (c).\4\ 
If the issues involved in the amendment are complex and/or numerous, 
the ``back and forth'' between the parties can be extensive.
---------------------------------------------------------------------------

    \4\ Section 733.12(b)(1) requires the Director to provide the 
State with sufficient information to allow the State to determine 
what portions of its program are not being effectively maintained 
and specify the time period for remedial action. Section 733.12(c) 
authorizes an informal conference between the parties to discuss the 
facts or the time period for accomplishing remedial action.
---------------------------------------------------------------------------

    On September 25, 2000, OSM's Acting Director sent a memorandum 
(administrative record document no. 22) to OSM's Regional Directors 
stating that one of the agency's program priorities for Fiscal Year 
2001 would be to review individual State programs for any outstanding 
amendments. The memorandum directed OSM's Regional Offices to survey 
all State programs to determine what amendments or portions of 
amendments were outstanding, negotiate specific submission dates with 
the States, and make those submission dates a part of each State's 
Fiscal Year 2001 work plan. Since commencement of that initiative, 
considerable progress has been made in reducing the backlog of 
outstanding amendments. The fact that OSM considered the amendment 
issue a program priority for Fiscal Year 2001, and chose to resolve 
that issue through negotiations with each of the 24 States rather than 
use the regulatory process established in Sec.  732.17(f)(2), is a 
further indication of our belief that the Sec.  732.17(f)(2) procedures 
are not appropriate for all situations in which there is an outstanding 
program amendment.
    The West Virginia bonding issue was one of those situations where 
more timely and forceful Federal action was called for in order to 
remedy a longstanding problem with the State's alternative bonding 
program. OSM did commence a Part 733 proceeding against the State on 
June 29, 2001, after a citizen lawsuit had been filed. As a result of 
the Part 733 proceeding and the citizen lawsuit, the State submitted 
program amendments that remedied problems with the State's alternative 
bonding program and the Part 733 proceeding was terminated on June 20, 
2002. As discussed in greater detail below, nothing in the revision to 
Part 732 would preclude the filing of a similar citizen suit at any 
time in the future.
    With regard to the Kentucky roads issue, that matter was resolved 
by a letter dated April 1, 2004, in which we notified the Commonwealth 
of Kentucky that we had reconsidered our Part 732 letter dated August 
22, 1988, that required Kentucky to revise its definition of ``affected 
area.'' In the April 1, 2004, letter, we concluded that the Kentucky 
program provisions concerning public roads are currently no less 
effective than the counterpart Federal provisions. That letter 
illustrates our contention that unresolved issues with States over 
delinquent State program amendments do not necessarily indicate an 
unwillingness or failure on the part of the State to ``maintain'' its 
approved program. In that instance, there was a legitimate issue of 
whether any amendment from the State was really required.
    One commenter stated that the Part 733 regulations give OSM 
substantial discretion over how to address deficiencies in the design, 
enforcement, or implementation of State regulatory programs. The 
commenter stated that the initiation of a Part 733 proceeding, whether 
pursuant to Sec.  732.17(f)(2) or because OSM otherwise has reason to 
believe that a State is not implementing or enforcing its approved 
program, does not inexorably result in substituted Federal enforcement 
or ouster of the State as the regulatory authority. The commenter, 
citing Sec. Sec.  733.12(e), 733.12(g), and 733.13, stated that, before 
deciding whether to institute Federal enforcement for all or part of a 
State program, or to recommend complete or partial withdrawal of the 
approved State program, OSM must review ``all available information'' 
and must consider a number of factors. The commenter stated that there 
is no mandatory duty to take over enforcement or to replace a State 
program with a Federal program. Those actions may occur only if the 
Director or the Secretary, in his or her discretion, makes specific 
findings. See Sec. Sec.  733.12(e) and (g)(2)(i). The commenter stated 
that the proposed rule does not explain why the discretion already 
available under Part 733 is insufficient to allow OSM to avoid any 
untoward impacts on its relationships with the States.
    With regard to the discretion issue, the commenter fails to realize 
that it is the lack of discretion under Sec.  732.17(f)(2) that is at 
issue. It is the commencement of Part 733 proceedings, when such 
proceedings are not warranted by the circumstances, that injures the 
working relationship we have with the States and wastes both State and 
Federal resources.
    We agree with the commenter that, once a Part 733 action has been 
initiated and before Federal enforcement may commence, the Director, 
under Sec.  733.12(e), must be able to find, based upon the review of 
all available information, that (1) the State has failed to implement, 
administer, maintain or enforce effectively all or part of its approved 
State program; and (2) the State has not demonstrated its capability 
and intent to administer the State program. In most instances, 
particularly those in which a State has submitted an amendment that we 
did not approve, it is unlikely that the Director, based upon the 
record, would be able to make both findings, particularly the second 
finding that the State has not demonstrated its intent to administer 
the State program. The commenter's argument clearly illustrates the 
problem created by the existing regulations. Under Sec.  732.17(f)(2), 
we are required to begin proceedings under Part 733 even when the facts 
tend to indicate that the Director does not have ``reason to believe'' 
under Sec.  733.12(b) and will be unable to make the findings required 
by Sec.  733.12(e). This is precisely why we propose to revise Sec.  
732.17(f)(2) in order

[[Page 61201]]

to prevent the Director from having to begin Part 733 proceedings in 
situations where proceedings do not appear to be warranted by the 
circumstances.
    One commenter stated that the proposed revision is an indirect 
attack on congressional encouragement of citizen participation in, and 
enforcement of, SMCRA because citizens can only enforce 
nondiscretionary duties against OSM and primacy States. Another 
commenter stated that the true intended effect of the proposed rule is 
to limit and weaken the citizen suit remedy under SMCRA and that OSM's 
true agenda is not pro-Federalism, but anti-citizen suit.
    OSM disagrees. Our revisions do not in any way prohibit citizens 
from participating in the enforcement of SMCRA. For example, under 
Sec.  733.12(a)(2), any interested person may request that the Director 
evaluate a State program. Section 733.12(a)(2) specifies that:

    Any interested person may request the Director to evaluate a 
State program. The request shall set forth a concise statement of 
the facts which the person believes establishes the need for 
evaluation. The Director shall verify the allegations and determine 
within 60 days whether or not the evaluation shall be made and mail 
a written decision to the requestor.

If the concise statement of facts submitted by the interested person 
establishes the need for an evaluation, the Director must begin 
proceedings under Sec.  733.12(b), which specifies that:

    If the Director has reason to believe that a State is not 
effectively implementing, administering, maintaining or enforcing 
any part of its approved State program, the Director shall promptly 
notify the State regulatory authority in writing. The Director's 
notice shall--
    (1) Provide sufficient information to allow the State regulatory 
authority to determine what portions of the program the Director 
believes are not being effectively implemented, administered, 
maintained, or enforced;
    (2) State the reasons for such belief; and
    (3) Specify the time period for the State regulatory authority 
to accomplish any necessary remedial actions.

Finally, our revisions to Sec.  732.17(f)(2) in no way affect the right 
of an individual to bring a citizen's suit under section 520(a) of 
SMCRA which provides in part as follows:

* * * any person having an interest which is or may be adversely 
affected may commence a civil action on his own behalf to compel 
compliance with this Act--
    (1) Against the United States or any other governmental 
instrumentality or agency to the extent permitted by the eleventh 
amendment to the Constitution which is alleged to be in violation of 
the provisions of this Act or of any rule, regulation, order or 
permit issued pursuant thereto, or against any other person who is 
alleged to be in violation of any rule, regulation, order or permit 
issued pursuant to this title; or
    (2) Against the Secretary or the appropriate State regulatory 
authority to the extent permitted by the eleventh amendment to the 
Constitution where there is alleged a failure of the Secretary or 
the appropriate State regulatory authority to perform any act or 
duty under this Act which is not discretionary with the Secretary or 
with the appropriate State regulatory authority.

Under section 520(a), an individual could commence a civil action 
against OSM if the Director failed to initiate a Part 733 proceeding 
against a State when such action is warranted based on a review of all 
available information. It should be noted that, in those situations 
where the State has submitted an amendment and the amendment either has 
not been approved or has been approved with a requirement to further 
amend the program, we publish the requirement to submit a new amendment 
in the Federal Register and codify the requirement in the Code of 
Federal Regulations (CFR) so that members of the public have notice of 
the outstanding amendment.\5\ At any time, based on the information 
published in the CFR, an interested party, under Sec.  733.12(a)(2), 
may request that the Director conduct an evaluation of the State 
program. In doing so, the requestor need only submit a concise 
statement of the facts that the person believes establish the need for 
such an evaluation.
---------------------------------------------------------------------------

    \5\ Each state is assigned a part number in Title 30 of the CFR, 
and in that part at section .16, we codify the requirement to submit 
an amendment. For examples, see 30 CFR 914.16 (Indiana), 948.16 
(West Virginia), and 950.16 (Wyoming).
---------------------------------------------------------------------------

    Two commenters stated that OSM must measure the adequacy of State 
programs on a part-by-part basis and the trigger in Part 732 must be 
consistent with the remedy in Part 733 which requires that OSM take 
over Federal administration and partial enforcement if any part of an 
approved State program is not being maintained or enforced. The 
commenters stated that, in contrast, the proposed rule would make the 
Part 732 trigger (i.e., deficient overall State performance) 
inconsistent with the Part 733 remedy (i.e., takeover of all or part of 
a State program). The commenters stated that, under the proposed rule, 
a State could fall well below Federal standards in one part of its 
program, but avoid a Federal takeover by maintaining adequate 
``overall'' performance of its program as a whole. According to the 
commenters, the proposed rule is therefore inconsistent with the clear 
language and intent of SMCRA.
    While we disagree with the commenters' analysis, we do agree that 
the language of the proposed rule should be clarified. We proposed 
adding the words ``if the Director has reason to believe that such 
action is warranted because the State is not effectively implementing, 
administering, maintaining or enforcing its approved program'', in 
order to provide the Director with the discretion to determine when 
proceedings should be started under Part 733. It was our intent under 
the proposed revision, that the State's failure to submit even a single 
program amendment by a specific date would be enough to require the 
Director to begin proceedings under Part 733 if that failure would 
likely result in a substantial deficiency in just one part of the State 
program or result in significant on-the-ground impacts, even if all 
else in the program were in good order. To make this absolutely clear, 
we are revising the language of the proposed rule by adding the words 
``all or part of'' to the final rule. The language of Sec.  
732.17(f)(2) will then read as follows: ``if the Director has reason to 
believe that such action is warranted because the State is not 
effectively implementing, administering, maintaining or enforcing all 
or part of its approved program.''
    One commenter stated that, in adopting the 1979 permanent program 
regulations (which contained language similar to the current Sec.  
732.17(f)(2) but required submission of the actual State program 
amendment, rather than a timetable for adoption), OSM rejected the 
suggestion that the State program amendment process be folded into Part 
733. The commenter stated that this is the very outcome now proposed by 
OSM in adopting the Part 733 standard of overall effectiveness in 
determining whether to act to sanction a State for a knowing failure to 
maintain program currency.
    We disagree. The comments discussed in the 1979 preamble (44 FR 
14902, 14967; March 13, 1979) suggested relocating the amendment 
process or ``appropriate amendment provisions'' into Part 733 because 
the amendment process should be part of maintaining State programs, not 
part of the overall initial State program approval/disapproval process. 
OSM did not accept the suggestions and stated that ``Part 733 is 
designed to address the State's actual implementation and 
administrative efforts.'' Our 1979 response failed to take into 
consideration that Sec.  733.12(b) specifically uses the term 
``maintaining'' and Sec.  733.12(e) uses the term ``maintain.'' It is 
obvious, therefore, that

[[Page 61202]]

one criterion in a Part 733 proceeding for determining State program 
effectiveness is maintenance, i.e., keeping the State program current 
through the amendment process. The existing regulations at Sec.  
732.17(f)(2), by requiring Part 733 proceedings, incorporate Part 733 
by reference thereby linking Parts 732 and 733 together. The rule we 
are promulgating today is consistent with the understanding that Parts 
732 and 733 are linked.
    One commenter stated that the Secretary, in proposing to delink the 
obligation to submit a program amendment from the sanctions of 
initiation of Part 733 proceedings, violates several aspects of SMCRA, 
including section 521(b), which is triggered any time that there is 
``reason to believe'' that violations are resulting from a failure by 
the State to enforce a program or any part thereof effectively. The 
commenter stated that the failure of a State regulatory authority to 
promptly revise a State program when requested and to maintain program 
currency is a violation that should trigger a mandatory response by the 
Secretary. Further, the commenter argued that section 504(a) demands a 
Federal response when any part of a State program is not being properly 
administered, precluding the ``overall'' or ``aggregate'' approach 
being proposed by OSM in the proposed rule.
    OSM disagrees. The commenter fails to realize that section 521(b) 
applies only when the State is failing to enforce its approved program. 
A delinquent amendment has yet to become part of the approved program, 
therefore, action under section 521(b) is inappropriate. With regard to 
the provisions of section 504(a) requiring promulgation and 
implementation of a Federal program for a State, those provisions are 
implemented by the regulations in Parts 733 and 736 and their 
applica