Clarification of Provisions Related to the Issuance of Ten-Day Notices to State Regulatory Authorities and Enhancement of Corrective Action for State Regulatory Program Issues, 28904-28917 [2020-10165]

Agencies

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

[Federal Register Volume 85, Number 94 (Thursday, May 14, 2020)]
[Proposed Rules]
[Pages 28904-28917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10165]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 733, 736, and 842

[Docket ID: OSM-2019-0010; S1D1S SS08011000 SX064A000 201S180110; S2D2S 
SS08011000 SX064A00 20XS501520]
RIN 1029-AC77


Clarification of Provisions Related to the Issuance of Ten-Day 
Notices to State Regulatory Authorities and Enhancement of Corrective 
Action for State Regulatory Program Issues

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

ACTION: Proposed rule.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement 
(OSMRE) proposes to clarify the regulations about notifying regulatory 
authorities of possible violations of any requirement of the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA). This action would 
streamline the process for OSMRE's coordination with regulatory 
authorities in order to minimize duplication of inspections, 
enforcement, and administration of SMCRA. Additionally, the proposed 
rule would enhance the procedures for early identification of, and 
implementation of corrective action to address, State regulatory 
program issues.

DATES: OSMRE will accept comments received or postmarked on or before 
11:59 p.m. Eastern Daylight Time (EDT), June 15, 2020 (the closing 
date). OSMRE must receive comments submitted electronically using the 
Federal eRulemaking Portal (see ADDRESSES below) by 11:59 p.m. EDT on 
the closing date.

ADDRESSES: You may submit comments, identified by RIN 1029-AC77, by any 
of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the search box, enter RIN 1029-AC77, which is 
the docket number for this proposed rulemaking. Then in the search 
panel on the left side of the screen, under the Document type heading, 
click on the Proposed Rules link to locate this document. You may 
submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail, other mail delivery service, 
or hand-delivery to: U.S. Department of the Interior, Office of Surface 
Mining Reclamation and Enforcement, 1849 C Street NW, Mail Stop 4550, 
Room 4558, Main Interior Building, Washington, DC 20240, Attention: 
Division of Regulatory Support.
    OSMRE requests that you send comments only by the methods described 
above. OSMRE will post all comments on https://www.regulations.gov. 
This generally means that OSMRE will post any personal information you 
provide (see Public Comment Procedures, below, for more information).

FOR FURTHER INFORMATION CONTACT: Kathleen G. Vello, OSMRE, Division of 
Regulatory Support, 1849 C Street NW, Mail Stop 4550, Room 4558, 
Washington, DC 20240, telephone number: (202) 208-1908. If you use a 
telecommunications device for the deaf (TDD), call the Federal Relay 
Service at: (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Comment Procedures
II. Background
III. Discussion of Proposed Rule and Section-by-Section Analysis
IV. Procedural Matters

I. Public Comment Procedures

    You may submit written comments, identified with the RIN 1029-AC77, 
by any of the methods described in the ADDRESSES section. Written 
comments submitted on the proposed rule should be specific, confined to 
issues pertinent to the proposed rule, and should explain the reason 
for any recommended change. Where possible, your comments should 
reference the specific section or paragraph of the proposal that you 
are addressing. The comments and recommendations that will be most 
useful and likely to influence agency decisions are those: Supported by 
quantitative information or studies; based on specific, identifiable 
experience; and that include citations to, and analyses of, the 
applicable laws and regulations.
    Comments received after the close of the comment period (see the 
DATES section) or delivered to addresses other than those listed above 
(see the ADDRESSES section) may not be considered or included in the 
Administrative Record for the final rule.
    Comments, including names and street addresses of respondent 
commenters, will be available for public review at the address listed 
under ADDRESSES during regular business

[[Page 28905]]

hours (7:00 a.m. to 4:00 p.m.), Monday through Friday, except holidays.
    Please be advised that OSMRE may make your entire comment--
including your personal identifying information such as your name, 
phone number, or email address--publicly available at any time. While 
you may ask OSMRE in your comment to withhold your personal identifying 
information from public view, OSMRE cannot guarantee that your request 
will be granted.

II. Background

A. Proposed Rule Summary

    As set forth in section 201(c)(12) of SMCRA, Congress requires 
OSMRE to, among other responsibilities, ``cooperate with . . . State 
regulatory authorities to minimize duplication of inspections, 
enforcement, and administration of this Act.'' 30 U.S.C. 1211(c)(12). 
Consistent with this statutory obligation and based on OSMRE's 42 years 
of experience administering SMCRA, the proposed rule would clarify the 
regulations found at 30 CFR 842.11 and 842.12 to state that, before 
issuing a notification to a State regulatory authority when a possible 
violation exists, OSMRE will consider any information readily 
available. This proposed modification would reduce inefficiencies by 
ensuring that OSMRE considers any readily available information, 
including information that a State regulatory authority may choose to 
provide, before OSMRE issues a notification to a State regulatory 
authority. Our consideration of this information is critical because a 
State regulatory authority has primary enforcement responsibility under 
a State regulatory program. Thus, the proposed rule would enable OSMRE 
to eliminate duplication of inspection and enforcement under SMCRA by 
clarifying that OSMRE would consider all readily available information, 
including any information provided by the State regulatory authority 
and other readily available information, before issuing a notification 
of a possible violation to that State regulatory authority. 
Furthermore, the proposed rule would clarify the meaning of the 
statutory terms ``appropriate action'' and ``good cause,'' as used in 
30 CFR 842.11, to describe the State regulatory authority's action or 
inaction after OSMRE notifies the State regulatory authority that a 
possible violation exists. Examples of what constitutes appropriate 
action and good cause exist in the existing regulations; however, in 
OSMRE's experience, the existing, example explanations are not 
exhaustive and do not fully reflect the array of in-the-field 
scenarios. Within the context of evaluating whether a State regulatory 
authority has taken appropriate action with respect to a possible 
violation, OSMRE has observed that not all State regulatory program 
issues OSMRE identifies warrant a Federal inspection, but may require 
further evaluation. To address these issues comprehensively and to 
ensure more complete and efficient enforcement of SMCRA, the proposed 
revision of 30 CFR part 733 would add procedures for corrective action 
of State regulatory program issues, including implementation of action 
plans. The proposed revisions to 30 CFR part 733 include adding 
definitions of the terms ``action plan'' and ``State regulatory program 
issue'' and introducing a mechanism for early identification and 
corrective action to address State regulatory program issues.
    For ease of organization, the preamble describes the proposed 
changes to Part 842 first, then it describes the proposed changes to 
Part 733.
    In the spirit of cooperative federalism, OSMRE has developed each 
of the proposed modifications and clarifications in close coordination 
with State regulatory authorities. The proposed clarifications are also 
consistent with Executive Order 13777 of February 24, 2017, 82 FR 12285 
(March 1, 2017), because the proposed clarifications would modify the 
existing regulations to alleviate unnecessary regulatory burden.
    The proposed changes in this rulemaking are consistent with SMCRA 
and will add transparency to OSMRE's oversight responsibilities; 
promote regulatory certainty for State regulatory authorities, 
regulated entities, and the public; enhance OSMRE's relationship with 
the State regulatory authorities; reduce redundancy in inspection and 
enforcement; and streamline the process for notifying State regulatory 
authorities of possible violations and other issues.

B. Statutory Background

    When Congress enacted SMCRA, 30 U.S.C. 1201 et seq., it established 
a regulatory structure for protecting the environment from the surface 
effects of coal mining. Specific to this proposed rulemaking, Title V 
of SMCRA embodies a regulatory relationship between the Federal 
Government, through OSMRE, and the States and Tribes (collectively 
referred to as ``State regulatory authority'' throughout this proposed 
rule because no Tribes currently have regulatory programs) known as 
cooperative federalism. SMCRA's mandate of cooperative federalism 
authorizes States (or Tribes)--within limits established by Federal 
minimum standards--to enact and administer regulatory programs 
structured to satisfy each State's individual needs. Under section 
503(a) of SMCRA, States may submit proposed State regulatory programs 
to the Secretary of the Interior (Secretary) for approval. 30 U.S.C. 
1253(a). The Secretary acts through OSMRE to review and approve or not 
approve a State's proposed State regulatory program. 30 U.S.C. 
1211(c)(1). After approval of a proposed State regulatory program, the 
State has achieved ``primacy.'' When a State achieves primacy, the 
State becomes the regulatory authority and has primary jurisdiction 
over the regulation of surface coal mining and reclamation operations 
on non-Federal lands within its borders, except as provided in sections 
521 and 523 and Title IV of SMCRA. 30 U.S.C. 1271, 1273, and 1231-1244. 
In general, a State can assume primary jurisdiction if the Secretary, 
acting through OSMRE, approves a proposed State regulatory program that 
demonstrates the State's capability to carry out SMCRA's provisions and 
satisfy its purposes.
    One of the exceptions outlined in 30 U.S.C. 1271(a) is the primary 
subject of this proposed rulemaking. This provision of SMCRA authorizes 
OSMRE to issue a notification to a State regulatory authority--commonly 
known as a Ten-Day Notice (TDN)--if OSMRE has reason to believe, based 
on any information available, that any person is in violation of any 
requirement of SMCRA or any permit condition required by SMCRA. The 
State regulatory authority must, within ten days, take appropriate 
action to cause the violation to be corrected or the State regulatory 
authority must demonstrate good cause for not correcting the violation. 
The State regulatory authority is obligated to transmit this response 
to OSMRE for further evaluation as dictated by OSMRE's regulations 
(discussed below in section II. C. Regulatory Background).
    Relevant to the proposed revisions to the regulations at 30 CFR 
part 733, as discussed below, section 504 of SMCRA, 30 U.S.C. 1254, in 
general, directs the Secretary to prepare and implement a Federal 
program if a State regulatory authority, among other reasons, fails to 
implement, enforce, or maintain its approved program. Furthermore, 
section 521(b) of SMCRA generally requires OSMRE to enforce the 
requirements of SMCRA when a State regulatory authority fails to 
enforce an approved State regulatory program effectively and certain 
other criteria are satisfied. 30 U.S.C. 1271(b).

[[Page 28906]]

C. Regulatory Background

    Section 201(c)(2) of SMCRA authorizes OSMRE to ``publish and 
promulgate such rules and regulations as may be necessary to carry out 
the purposes and provisions of this Act.'' 30 U.S.C. 1211(c)(2). OSMRE 
has implemented the statutory requirements discussed above through the 
existing regulations, including 30 CFR parts 842 and 733.
    OSMRE has implemented section 521(a)(1) of SMCRA, in part, through 
the existing regulations at 30 CFR 842.11(b)(1) and (b)(2). These 
regulations outline the procedures for an authorized representative of 
the Secretary to notify a State regulatory authority of a possible 
violation and possible Federal enforcement. In addition, the existing 
regulation at Sec.  842.11(b)(2) provides that ``[a]n authorized 
representative shall have reason to believe that a violation, condition 
or practice exists if the facts alleged by the informant would, if 
true, constitute a condition, practice or violation referred to in 
paragraph (b)(1)(i) of this section.'' As discussed below, in 
conjunction with the proposed revision to Sec.  842.11(b)(2), the 
proposed rule would modify that section to recognize that OSMRE 
considers other readily available information in addition to the facts 
that a citizen complainant alleges when the authorized representative 
of the Secretary is determining whether there is reason to believe a 
violation exists.
    An administrative case before the Interior Board of Land Appeals 
(IBLA) has interpreted SMCRA and these regulations, holding that OSMRE 
``retains a significant oversight role to ensure compliance with 
SMCRA's mandates.'' Frank Hubbard, 145 IBLA 49, 52 (1998). In Hubbard, 
the IBLA also stated: ``[w]here pursuant to a citizen's complaint, 
OSM[RE] has reason to believe that a permittee is in violation of a 
[S]tate regulatory program, OSM[RE] is required to issue a TDN to the 
appropriate [S]tate regulatory authority.'' Id. at 53. However, neither 
SMCRA nor the regulations clearly define the phrase ``reason to 
believe,'' and both are ambiguous as to what information OSMRE may 
consider when determining whether OSMRE has ``reason to believe'' that 
a permittee is in violation of applicable requirements.
    The proposed rule would clarify areas of the regulations discussed 
above, which have resulted in disparate application, regulatory 
uncertainty, redundancy, and duplicative investigation and enforcement 
by OSMRE and State regulatory authorities.
    Moreover, the existing regulations at 30 CFR 842.11(b)(1)(ii)(B)(2) 
through (4) further implement the requirements of section 521(a)(1) of 
SMCRA. 30 U.S.C. 1271(a)(1). The existing regulations are primarily the 
result of substantial amendments made to the regulations in 1988. 
Pursuant to the final rule published in the July 14, 1988, Federal 
Register (53 FR 26728), the regulations were amended to ``establish a 
uniform standard by which OSMRE will evaluate [S]tate responses to 
[F]ederal notices of possible violations of [SMCRA].'' The regulations 
established that OSMRE ``will accept a [S]tate regulatory authority's 
response to a [TDN] as constituting appropriate action to cause a 
possible violation to be corrected or showing good cause for failure to 
act unless OSMRE makes a written determination that the [S]tate's 
response was arbitrary, capricious, or an abuse of discretion under the 
[S]tate program.'' Id. This final rule became effective on August 15, 
1988.
    In summary, a State regulatory authority must take appropriate 
action to correct a possible violation identified by OSMRE in a TDN, or 
the State regulatory authority must show good cause why the violation 
has not been corrected. Under section 521(a)(1) of SMCRA, if a State 
regulatory authority does not take appropriate action or show good 
cause, SMCRA requires us to initiate a Federal inspection of the 
surface coal mining operation at which the alleged violation is 
occurring (unless the information OSMRE has is from a previous Federal 
inspection of the same operation). 30 U.S.C. 1271(a)(1). Thus, OSMRE's 
interpretations of what the terms ``appropriate action'' and ``good 
cause'' mean are essential to maintaining the proper balance between 
Federal enforcement and the primary role of a State regulatory 
authority in implementing an approved program. Although the existing 
regulations discuss both ``appropriate action'' and ``good cause,'' the 
regulations about these integral phrases have not been substantially 
updated in over 31 years. Based on our experience and feedback from 
State regulatory authorities, the proposed rule would update and 
clarify the meaning of the terms ``appropriate action'' and ``good 
cause.''
    OSMRE is also proposing to revise the regulations at 30 CFR part 
733 to add new definitions and a new section that would operate in 
conjunction with the Part 842 regulations, discussed above. To balance 
the provisions of SMCRA found at sections 503 and 504, 30 U.S.C. 1253 
and 1254, and the provisions of section 517(b), 30 U.S.C. 1267(b), 
regulations found at 30 CFR part 733 were promulgated. See generally 44 
FR 15323 (March 13, 1979). States with State regulatory programs are 
required to implement, administer, enforce, and maintain their 
respective programs in accordance with SMCRA, the implementing 
regulations, and the provisions of the approved program. 30 CFR 733.11. 
The regulations at 30 CFR part 733 establish requirements for the 
maintenance of State regulatory programs and procedures for the rare 
remedy of substituting Federal enforcement of State regulatory programs 
and withdrawing approval of State regulatory programs. 30 CFR 733.1. 
These regulations have not been substantively revised in over 37 years. 
47 FR 26366 (June 17, 1982). However, in coordination with State 
regulatory authorities, OSMRE determined that mechanisms exist for 
addressing identified State regulatory program issues to avoid reaching 
a threshold that would require substitution of Federal enforcement of a 
State regulatory program. OSMRE may identify these State regulatory 
program issues in the context of reviewing a State regulatory 
authority's response to a TDN. Therefore, the proposed rule addresses 
any State regulatory program issue OSMRE may find during State 
regulatory program reviews by adding provisions to 30 CFR part 733 for 
early identification and corrective action and to refer to these State 
regulatory program issues in the proposed revisions to 30 CFR 
842.11(b)(1)(ii)(B)(3).

III. Discussion of the Proposed Rule and Section-by-Section Analysis

A. Overview

    While most States with significant surface coal mining operations 
have obtained primacy to regulate surface coal mining within their 
borders, OSMRE still plays a significant oversight role in regulating 
the coal mining industry. When OSMRE is not the primary agency 
regulating surface coal mining in a State, OSMRE assumes a direct 
oversight role. If OSMRE has reason to believe that any person has 
violated the applicable requirements, section 521(a)(1) of SMCRA 
requires OSMRE to notify the relevant State regulatory authority of the 
potential violation. In this context, ``any person'' includes the SMCRA 
permit holder, an operator contracted to conduct the surface coal 
mining activity, or certain officials related to these entities who 
have responsibilities under SMCRA. However, ``any person'' does not 
include State regulatory authorities, OSMRE, or employees or agents 
thereof,

[[Page 28907]]

unless they are acting as permit holders. A reasonable reading of 
section 521(a)(1) is that the referenced violations are those that 
permittees, and related entities or persons, commit in contravention of 
State regulatory programs. Therefore, within the context of section 
521(a) of SMCRA and the TDN regulations, the proposed rule would 
clarify that OSMRE will not send TDNs to State regulatory authorities 
based on allegations or other information that indicates that a State 
regulatory authority may have taken an improper action under the 
State's regulatory program. OSMRE concludes that this approach is 
consistent with the plain language of section 521(a). However, if OSMRE 
becomes aware that there is a State regulatory program issue that calls 
into question a State regulatory authority's effective administration 
of its State regulatory program, even with respect to a single 
operation, OSMRE intends to clarify that OSMRE would address the issue 
programmatically under the proposed revisions to 30 CFR part 733, 
rather than through the TDN process. Moreover, as explained below in 
the discussion of the proposed revisions to 30 CFR part 733, the 
proposed rule would clarify that even when OSMRE is engaged in a 
corrective action process with a State regulatory authority, the State 
regulatory authority may take direct enforcement action under its State 
regulatory program. Additionally, OSMRE can take appropriate oversight 
enforcement actions, in the event that there is, or may be, an imminent 
on-the-ground violation.
    One of the instances when OSMRE may issue a TDN is when OSMRE 
receives a complaint from a citizen about an alleged violation at a 
surface coal mining operation. When OSMRE receives such a citizen 
complaint, OSMRE will issue a TDN to the State regulatory authority if 
OSMRE has reason to believe that any person is in violation of any 
requirement of SMCRA, the implementing regulations, the applicable 
State regulatory program, or a permit condition required by SMCRA. 
Based on 42 years of regulatory and oversight experience, OSMRE finds 
that unnecessary duplication exists in the current TDN process that can 
be eliminated by ensuring OSMRE examines all readily available 
information, including the information the State regulatory authority 
possesses. This is critical because in some instances in the past, 
OSMRE has issued a TDN after receipt of a citizen complaint even though 
the State regulatory authority had received a simultaneous complaint 
about the same possible violation. This resulted in the State 
regulatory authority and OSMRE initiating two parallel processes and 
engaging in duplicative effort without any significant benefit. 
Further, the relevant State regulatory authority and OSMRE were 
actively investigating the same issue. If OSMRE issues a TDN when a 
State regulatory authority is already investigating the same 
allegation, it can divert the State regulatory authority's efforts away 
from addressing a potential problem to instead responding to OSMRE's 
TDN. OSMRE could minimize or avoid redundancy and duplication of time 
and resources by ensuring that a State regulatory authority is involved 
early in the process, thus, freeing both OSMRE and the State regulatory 
authority to redirect time and allocate limited resources more 
effectively to ensure that potential violations are addressed. 
Accordingly, the proposed rule would clarify that, if OSMRE's 
authorized representative, while using his or her best professional 
judgment, is aware that a State regulatory authority has investigated 
or is actively investigating the possible violation, the authorized 
representative would consider the State regulatory authority's action 
before determining if there is reason to believe a violation exists.

B. Proposed 30 CFR 842.11(b)(1)

    Existing 30 CFR 842.11(b)(1) explains the circumstances when OSMRE 
``shall'' conduct a Federal inspection, but the paragraph primarily 
focuses on the process leading up to a Federal inspection, including 
the process for OSMRE's issuance of a TDN to a State regulatory 
authority. In general (when there is no imminent danger or harm 
scenario), consistent with section 521(a) of SMCRA, when OSMRE issues a 
TDN to a State regulatory authority, OSMRE evaluates the State 
regulatory authority's response to the TDN before deciding whether to 
conduct a Federal inspection. Consistent with the existing regulations, 
OSMRE will issue a TDN to a State regulatory authority when an 
authorized representative of OSMRE has reason to believe that there is 
a violation of SMCRA, the implementing regulations, the applicable 
State regulatory program, or any condition of a permit or an 
exploration approval. In general, OSMRE may also issue a TDN when there 
is any condition, practice, or violation that creates an imminent 
danger to the health or safety of the public or is causing, or that 
OSMRE reasonably expect to cause, a significant, imminent, 
environmental harm to land, air, or water resources. In the latter 
situation, OSMRE will bypass the TDN process, and proceed directly to a 
Federal inspection, if the person supplying the information provides 
adequate proof that there is an imminent danger to the public health 
and safety or a significant, imminent environmental harm.
    In the introductory sentence at 30 CFR 842.11(b)(1), the proposed 
rule would replace the word ``shall'' with the word ``will'' because it 
explains an action that OSMRE will take under the specified 
circumstances.\1\ In the context of the existing provision at Sec.  
842.11(b)(1), OSMRE already treats ``shall'' as ``will.'' Consequently, 
because other revisions are proposed to this section, the proposed rule 
would change ``shall'' to ``will'' to remove any possible ambiguity.
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    \1\ The U.S. Government Publishing Office recommends against 
using the word ``shall'' because it can mean may, will, or must 
depending on the context and can create ambiguity.
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    The proposed rule would also modify existing 30 CFR 842.11(b)(1)(i) 
to clarify that when an authorized representative assesses whether he 
or she has reason to believe a violation exists, the authorized 
representative would consider any information that is accessible 
without unreasonable delay. The proposed rule would achieve this 
clarification by inserting the word ``readily'' between the existing 
words ``information'' and ``available.''
    OSMRE finds that these proposed revisions would be consistent with 
section 521(a)(1) of SMCRA, which sets forth that OSMRE can form reason 
to believe ``on the basis of any information available to [the 
Secretary], including receipt of information from any person.'' 30 
U.S.C. 1271(a)(1). Based on SMCRA's plain language, such information is 
not restricted to information OSMRE receives from a citizen 
complainant. Rather, the information includes any information OSMRE 
receives from a citizen or the applicable State regulatory authority, 
or any other information OSMRE is aware exists. Also, the proposed rule 
would clarify that such information must be readily available, so that 
the process will proceed as quickly as possible and will not become 
open-ended.
    In addition, the House of Representatives discussion of proposed 
section 521(a)(1) attempted to illustrate one way to establish ``reason 
to believe'' in the context of TDNs:

    In addition to normally programmed inspections, section 
521(a)(1) of the bill also provides for special inspections when the 
Secretary receives information giving him reason to believe that 
violations of the act or

[[Page 28908]]

permit have occurred. It is anticipated that ``reasonable belief'' 
could be established by a snapshot of an operation in violation or 
other simple and effective documentation of a violation.
    By mandating primary enforcement authority to field inspectors, 
this bill recognizes that inspectors are in the best position to 
recognize and control compliance problems.

    H. Rept. No. 95-218, at 129 (April 22, 1977) (emphasis added). See 
also H. Rept. No. 94-1445, at 74-75; H. Rep. No. 94-896, at 76-77; and 
H. Rept. No. 94-45, at 118-119. The proposed revision to Sec.  
842.11(b)(1)(i) is consistent with this reference to the Secretary's 
consideration of ``other simple and effective documentation of a 
violation'' in determining whether there is reason to believe that a 
violation exists. While this language from the legislative history 
relates to the information that a citizen provides, it is reasonable to 
apply the same principle to section 521, as enacted. In addition, in 
practice, citizen complaints do not always include simple and effective 
documentation of a violation. Instead, citizen complaints sometimes 
present a combination of documentation and bare allegations. Under the 
existing regulations, in cases where OSMRE has determined ``reason to 
believe'' that a violation exists at a particular operation, it was 
often because OSMRE only accepted the alleged facts. To ensure OSMRE 
obtains effective documentation, the proposed rule would expand our 
consideration to include a broader array of readily available 
information.
    As mentioned above, section 521(a)(1) allows OSMRE to consider 
``any information available . . ., including receipt of any information 
from any person'' when OSMRE is determining whether it has reason to 
believe that a violation exists. Congress provided that when States 
achieve primacy, they are the primary SMCRA regulatory authorities; 
therefore, it is important for OSMRE to be able to consider any readily 
available information that OSMRE receives from a State regulatory 
authority when OSMRE is determining whether OSMRE has reason to believe 
that a violation exists. Indeed, the above quoted passage from the 
House Report notes inspectors, based on on-the-ground observations, are 
``in the best position to recognize'' violations. In the overall 
context of SMCRA, any information OSMRE receives from a State 
regulatory authority is often integral to the assessment of whether a 
violation exists. During the course of OSMRE oversight enforcement 
history, the knowledge and information provided by a State regulatory 
authority has been critical to OSME's understanding of a possible 
violation.
    Moreover, OSMRE's consideration of information that it receives 
from the State regulatory authority promotes efficiency and avoids 
duplication and redundancy of investigatory and enforcement activity 
between OSMRE and a State regulatory authority. As discussed above in 
the Overview, the TDN process is time-consuming for both State 
regulatory authorities and OSMRE. OSMRE has spent considerable time 
preparing TDNs and analyzing State regulatory authority TDN responses. 
Similarly, State regulatory authorities have spent considerable time 
preparing responses to TDNs issued by OSMRE, and some State regulatory 
authorities have reported increases in the time spent investigating and 
responding to TDNs. Accordingly, the proposed rule would clarify that, 
if OSMRE's authorized representative, while using his or her best 
professional judgment, is aware that a State regulatory authority has 
investigated or is actively investigating the possible violation, the 
authorized representative would consider the State regulatory 
authority's action before determining if there is reason to believe a 
violation exists.
    In addition, clarification of the existing regulations is warranted 
because State regulatory authorities have reported varying levels of 
communication and approaches from our various field offices relative to 
consideration of a State regulatory authority's actions when assessing 
whether the OSMRE authorized representative has reason to believe that 
a violation exists. Clarifying the regulation in the manner described 
above will promote regulatory certainty for State regulatory 
authorities and permittees, as well as the public, and should foster 
better relationships between OSMRE and State regulatory authority 
personnel. Increased cooperation between OSMRE and the State regulatory 
authorities promotes both the common mission of effective SMCRA 
implementation and collaboration between Federal and State agencies. 
Additionally, relying on information OSMRE receives from a State 
regulatory authority, along with the information in a citizen complaint 
and other readily available information, will promote more efficient 
and informed decision making on our part. Thus, by making a more 
informed decision, the TDNs that OSMRE issues will be focused on 
situations with a higher likelihood of a violation, which is a better 
use of OSMRE and the State regulatory authority's resources. Armed with 
more time, the State regulatory authorities and OSMRE could devote more 
resources to effective regulation of potential environmental effects of 
surface coal mining.
    Finally, the existing regulations at Sec.  842.12(a) require that a 
person requesting a Federal inspection must demonstrate that he or she 
has notified the applicable State regulatory authority. In the context 
of this rulemaking, OSMRE reiterates that, in general, OSMRE would not 
consider a citizen complaint until the citizen has complied with this 
regulation and properly notified the relevant State regulatory 
authority. Therefore, the provisions of existing Sec.  842.12(a) work 
in conjunction with the addition of the provisions of proposed Sec.  
842.11(b) that would require an authorized representative to determine 
whether he or she has reason to believe that a violation exists based 
on ``any information readily available.'' The ``information readily 
available'' would include information from a State regulatory 
authority, which a citizen complainant has notified--consistent with 
the existing regulations. However, if an imminent harm is present, 
OSMRE will take any action it deems necessary under 30 U.S.C. 1271(a) 
and the implementing regulations.

C. Proposed 30 CFR 842.11(b)(1)(ii)(A)

    Existing 30 CFR 842.11(b)(1)(ii)(A) reads as follows: ``[t]here is 
no State regulatory authority or the Office is enforcing the State 
regulatory program under section 504(b) or 521(b) of the Act and part 
733 of this chapter.'' In this section, the proposed rule would only 
capitalize the ``p'' in the word ``Part'' and add the word 
``regulatory'' between the words ``State'' and ``program'' to promote 
consistency throughout this rulemaking and clarify that OSMRE is 
referring to State regulatory programs.

D. Proposed 30 CFR 842.11(b)(1)(ii)(B)(1)-(4)

    The proposed rule would make non-substantive changes to existing 30 
CFR 842.11(b)(1)(ii)(B)(1) for readability. The existing language is 
set forth above under section II.C. Regulatory Background. The proposed 
revision would read,

    The authorized representative has notified the State regulatory 
authority of the possible violation and more than ten days have 
passed since notification, and the State regulatory authority has 
not taken appropriate action to cause the violation to be corrected 
or to show good cause for not doing so, or the State regulatory 
authority has not provided the authorized representative with a 
response. After receiving a response from the State regulatory 
authority, but before a Federal inspection, the authorized 
representative will

[[Page 28909]]

determine in writing whether the standards for appropriate action or 
good cause have been satisfied. A State regulatory authority's 
failure to respond within ten days does not prevent the authorized 
representative from making a determination, and will constitute a 
waiver of the State regulatory authority's right to request review 
under paragraph (b)(1)(iii) of this section.

    Although there is no proposed change to the existing regulation at 
30 CFR 842.11(b)(1)(ii)(B)(2), it is discussed here for context related 
to the proposed clarifications in 30 CFR 842.11(b)(1)(ii)(B)(3), which 
describes the term ``appropriate action,'' and 30 CFR 
842.11(b)(1)(ii)(B)(4), which describes the term ``good cause.'' 
Consistent with Sec.  842.11(b)(1)(ii)(B)(2), when OSMRE receives a 
State regulatory authority's response to a TDN, OSMRE determines 
whether or not the State regulatory authority's action or response 
constitutes appropriate action to cause any violation to be corrected 
or good cause for not taking action. The existing regulation requires 
OSMRE to determine that the State regulatory authority's action or 
response constitutes appropriate action or good cause if it is not 
arbitrary, capricious, or an abuse of discretion under the approved 
State regulatory program. In this context, the arbitrary and capricious 
standard is appropriately deferential to State regulatory authorities 
and is consistent with SMCRA's cooperative federalism model.
    As it currently exists, 30 CFR 842.11(b)(1)(ii)(B)(3) explains that 
``[a]ppropriate action includes enforcement or other action authorized 
under the State program to cause the violation to be corrected.'' The 
proposed rule would add to this requirement a second sentence that 
reads, ``[a]ppropriate action may include OSMRE and the State 
regulatory authority immediately and jointly initiating steps to 
implement corrective action to resolve any issue that the authorized 
representative and applicable Field Office Director identify as a State 
regulatory program issue, as defined in 30 CFR part 733.'' The proposed 
rule gives the responsibility for identification of State regulatory 
program issues to the applicable Field Office Director and authorized 
representative, as these officials possess unique knowledge of the 
specific requirements of and responsibilities under the applicable 
State regulatory program. Although OSMRE has historically allowed 
programmatic resolution of State regulatory program issues, such as 
implementation of remedies under 30 CFR part 732, to constitute 
``appropriate action'' in a given situation, the existing regulations 
do not specifically explain resolution of State regulatory program 
issues through corrective actions. This approach has created regulatory 
uncertainty. In order to avoid confusion for the regulated community, 
State regulatory authorities, and the public at large, the proposed 
rule would remove any ambiguity and definitively state that 
``appropriate action'' may include corrective action to resolve State 
regulatory program issues. However, proposed Sec.  733.12(a)(2) 
reaffirms that if OSMRE concludes that the State regulatory authority 
is not effectively implementing, administering, enforcing, or 
maintaining all or a portion of its State regulatory program, OSMRE may 
substitute Federal enforcement of the State regulatory program or 
withdraw approval. Additionally, in accordance with proposed Sec.  
733.12(d), OSMRE reserves the right to reinstitute oversight 
enforcement if, subsequent to a finding of appropriate action based 
upon a corrective action consistent with proposed 30 CFR part 733, an 
on-the-ground violation occurs or may imminently occur.
    As it currently exists, 30 CFR 842.11(b)(1)(ii)(B)(4) identifies 
circumstances that constitute good cause for a State regulatory 
authority not to have corrected a violation. In general, pursuant to 
the existing regulations, good cause for a State regulatory authority's 
failure to take action includes: (1) A finding that the possible 
violation does not exist under the State regulatory program; (2) the 
State regulatory authority requires additional time to determine 
whether a violation exists; (3) the State regulatory authority lacks 
jurisdiction over the possible violation under the State regulatory 
program; (4) the State regulatory authority is precluded by an 
administrative or judicial order from acting on the possible violation; 
or (5) specific to abandoned mine sites, the State regulatory authority 
is diligently pursuing or has exhausted all appropriate enforcement 
provisions.
    The proposed rule would make minor clarifications to the examples 
of what constitutes good cause. First, proposed Sec.  
842.11(b)(1)(ii)(B)(4)(i) would make a non-substantive change for 
readability and consistency that would simply add the word 
``regulatory'' between ``State'' and ``program'' and switch the 
position of two phrases in the provision. The existing provision reads, 
``[u]nder the State program, the possible violation does not exist,'' 
and the revised provision would read, ``[t]he possible violation does 
not exist under the State regulatory program.'' Second, the proposed 
rule would revise Sec.  842.11(b)(1)(ii)(B)(4)(ii) to provide that good 
cause includes: ``[t]he State regulatory authority has initiated an 
investigation into a possible violation and as a result has determined 
that it requires a reasonable, specified additional amount of time to 
determine whether a violation exists.'' The proposed revision would 
explain that the authorized representative would have discretion to 
determine how long the State regulatory authority should reasonably be 
given to complete its investigation of the possible violation. Also, 
the authorized representative would communicate to the State regulatory 
authority the date by which its investigation must be completed. This 
proposed revision would promote prompt identification and resolution of 
possible violations. OSMRE cautions that investigations should not be 
open-ended, the State regulatory authority would be required to perform 
the investigations efficiently and effectively, and the State 
regulatory authority should focus the investigation on satisfying the 
objective of the TDN process--achieving compliance with the State 
regulatory program. A State regulatory authority must demonstrate that, 
when engaging in an investigation, its inquiry focuses on investigating 
a possible violation. In no circumstance should a State regulatory 
authority use an investigation to delay Federal oversight or 
enforcement or delay our evaluation of a State regulatory authority's 
response to a TDN.
    The proposed rule would make a minor revision to Sec.  
842.11(b)(1)(ii)(B)(4)(iii). This proposed change would also require 
that a State regulatory authority would need to demonstrate that it 
lacks jurisdiction over the possible violation to qualify for this good 
cause showing. The existing language reads, ``[t]he State regulatory 
authority lacks jurisdiction under the State program over the possible 
violation or operation . . . .'' The proposed language would read, 
``[t]he State regulatory authority demonstrates that it lacks 
jurisdiction over the possible violation under the State regulatory 
program . . . .''
    Similarly, the proposed rule would make minor, non-substantive 
modifications to Sec.  842.11(b)(1)(ii)(B)(4)(iv) for readability and 
to clarify that, in order to show good cause, the State regulatory 
authority would need to demonstrate that an order from an 
administrative review body or court of competent jurisdiction precludes 
it from taking action on the possible violation. The

[[Page 28910]]

existing language reads, ``[t]he State regulatory authority is 
precluded by an administrative or judicial order from an administrative 
body or court of competent jurisdiction from acting on the possible 
violation, where that order is based on the violation not existing or 
where the temporary relief standards of section 525(c) or 526(c) of the 
Act have been met . . . .'' The proposed language would read, ``[t]he 
State regulatory authority demonstrates that it is precluded from 
taking action on the possible violation because an administrative 
review body or court of competent jurisdiction has issued an order 
concluding that the possible violation does not exist or that the 
temporary relief standards of the State regulatory program counterparts 
to section 525(c) or 526(c) of the Act have been satisfied . . . .''
    Finally, the proposed rule would make minor, non-substantive 
modifications to Sec.  841.11(b)(1)(ii)(B)(4)(v) to enhance readability 
and clarity. The existing language reads,

[w]ith regard to abandoned sites as defined in Sec.  840.11(g) of 
this chapter, the State regulatory authority is diligently pursuing 
or has exhausted all appropriate enforcement provisions of the State 
program.

    The proposed rule would read,

[r]egarding abandoned sites, as defined in 30 CFR 840.11(g), the 
State regulatory authority is diligently pursuing or has exhausted 
all appropriate enforcement provisions of the State regulatory 
program.

    In addition to the specific clarifications of the terms 
``appropriate action'' and ``good cause'' noted above, the proposed 
rule would reaffirm the process OSMRE currently employs in relationship 
to conclusions about State regulatory authority TDN responses. Pursuant 
to existing Sec.  842.11(b)(1)(B)(2), the authorized representative may 
make a finding that the State regulatory authority has taken an 
appropriate action or has good cause for not taking action, as long as 
the State regulatory authority has presented a rational basis for its 
decision, action, or inaction. Additionally, the State regulatory 
authority's response must not be arbitrary, capricious, or an abuse of 
discretion under the State regulatory program. When an authorized 
representative assesses whether a State regulatory authority has taken 
appropriate action or has good cause for not taking action, the 
authorized representative focuses on whether the action corrected the 
violation and not merely the methodology that the State regulatory 
authority employed to correct the violation. Additionally, OSMRE 
assesses and determines if the State regulatory authority based its 
action or response on a reasonable consideration of the relevant facts 
and if the action or response is an exercise of reasoned discretion 
that complies with the State regulatory program.

E. Proposed 30 CFR 842.11(b)(2)

    As it currently exists, Sec.  842.11(b)(2) offers an interpretation 
of the phrase ``reason to believe'' that has not been revisited in this 
section since a 1982 rulemaking. The existing regulation at Sec.  
842.11(b)(2) essentially requires an authorized representative to 
accept the facts in a citizen complaint as true when determining 
whether he or she has reason to believe that a violation exists. The 
existing provision reads, ``[a]n authorized representative shall have 
reason to believe that a violation, condition or practice exists if the 
facts alleged by the informant would, if true, constitute a condition, 
practice or violation referred to in paragraph (b)(1)(i) of this 
section.''

    The proposed revision reads,

[a]n authorized representative will have reason to believe that a 
violation, condition, or practice referred to in paragraph (b)(1)(i) 
of this section exists if the facts that a complainant alleges, or 
facts that are otherwise known to the authorized representative, 
constitute simple and effective documentation of the alleged 
violation, condition, or practice. In making this determination, the 
authorized representative will consider any information readily 
available to him or her, including any information a citizen 
complainant or the relevant regulatory authority submits to the 
authorized representative.

    Some might have interpreted the existing regulatory provisions to 
mean that all OSMRE has to do is determine if the alleged facts would 
constitute a violation before issuing a TDN. However, the existing 
regulations at Sec.  842.11(b)(1)(i) provide that the authorized 
representative can consider ``information available'' when determining 
whether he or she has reason to believe a violation exists, rather than 
automatically and only accepting the facts alleged in a citizen 
complaint as true. Because of its importance to an understanding of the 
statutory scheme, clarifying the meaning of the phrase ``reason to 
believe,'' as discussed above in the explanation of proposed 30 CFR 
842.11(b)(1), is paramount.
    Consistent with this approach, the proposed rule would modify Sec.  
842.11(b)(2) to clarify that OSMRE would consider any information 
readily available and not only the facts alleged in a citizen complaint 
when determining whether it has reason to believe a violation exists. 
Nothing in SMCRA requires OSMRE to accept alleged facts as true in a 
vacuum. Rather, information that a citizen provides is usually only a 
portion of the readily available information that OSMRE would consider 
when deciding whether to initiate the TDN process. Moreover, the 
inclusion of the phrase ``reason to believe'' in section 521(a)(1) of 
SMCRA indicates that Congress intended for OSMRE to use discretion in 
determining whether to issue a TDN to a State regulatory authority. 
With the proposed changes, after OSMRE receives an allegation of a 
violation and assess all readily available information, OSMRE would 
apply independent, professional judgment to determine whether OSMRE has 
reason to believe a violation exists. Congress created OSMRE to be the 
expert agency that administers SMCRA. Therefore, OSMRE should never be 
acting as a mere conduit for transmitting a citizen complaint to a 
State regulatory authority in the form of a TDN.
    Proposed Sec.  842.11(b)(2) would complement the provisions of 
proposed Sec.  842.11(b)(1)(i), discussed above, and, together, the 
provisions would provide clarification for how an authorized 
representative would arrive at reason to believe that a violation 
exists in the context of the TDN process. In short, the clarified 
provisions propose to adopt language that Congress offered when it was 
drafting SMCRA. Specifically, Congress anticipated that ```reasonable 
belief' could be established by a snapshot of an operation in violation 
or other simple and effective documentation of a violation.'' H. Rept. 
No. 95-218 at 129 (1977). As explained above, under the discussion of 
proposed Sec.  842.11(b)(1), OSMRE would apply the principle of 
considering ``other simple and effective documentation of a violation'' 
to all information readily available to it, no matter the source. 
Specifically, the reference to ``any information available'' in section 
521(a)(1), 30 U.S.C. 1271(a)(1), would include not only information 
OSMRE receives from a citizen complainant and information of which it 
is already aware, but also any information OSMRE receives from the 
applicable State regulatory authority. The discussion of proposed Sec.  
842.11(b)(1)(i), above, discusses in more detail OSMRE's multi-faceted 
rationale for clarifying the meaning of the phrase ``reason to 
believe.'' One key point that the proposed rule would be clarifying is 
that, if the authorized representative, while using his or her best 
professional

[[Page 28911]]

judgment, is aware that the State regulatory authority has investigated 
or is actively investigating the possible violation, the authorized 
representative would consider the State regulatory authority's action 
before determining if there is reason to believe a violation exists.
    However, OSMRE remains mindful of the important role that citizens 
play in effective implementation and enforcement of SMCRA. Therefore, 
OSMRE would continue to take allegations in a citizen complaint very 
seriously, and OSMRE encourages citizens to provide as much detail and 
simple and effective documentation about the alleged violation in their 
complaints as possible.
    In summary, the proposed revision to Sec.  842.11(b)(2) dovetails 
with existing Sec.  842.11(b)(1)(i), as well as the proposed 
clarification of that section, discussed above, which would allow OSMRE 
to consider ``any information readily available'' when making a 
``reason to believe'' determination. Being able to read these two 
provisions in harmony should reduce or eliminate any conflict or 
confusion that the existing provisions created.

F. Proposed 30 CFR 842.12(a)

    As it currently exists, 30 CFR 842.12(a) identifies the process to 
request a Federal inspection. This existing regulatory provision states 
that a person may request a Federal inspection by submitting a signed, 
written statement giving the authorized representative reason to 
believe that a violation, condition or practice referred to in Sec.  
842.11(b)(1)(i) exists and that the State regulatory authority has been 
notified in writing about the violation. The provision also requires 
the submitter to include a phone number and address where the person 
can be contacted. The authorized representative then assesses if he or 
she has reason to believe that a violation, condition, or practice 
referred to in Sec.  842.11(b)(1)(i) exists.
    The proposed modifications to 30 CFR 842.12(a) complement the 
proposed clarifications outlined above in the discussion of proposed 
Sec.  842.11(b)(1)'s ``reason to believe'' standard. Specifically, the 
proposed rule would modify the existing language in Sec.  842.12(a) to 
clarify that, when a person requests a Federal inspection, the person's 
request must include, ``information that, along with any other readily 
available information, may give the authorized representative reason to 
believe that a violation, condition, or practice referred to in Sec.  
842.11(b)(1)(i) exists.'' The proposed rule would also make minor, non-
substantive modifications to the provision at existing Sec.  842.12(a) 
so that the revised provision would reaffirm that when any person 
requests a Federal inspection, the person's written statement ``must 
also set forth the fact that the person has notified the State 
regulatory authority, if any, in writing, of the existence of the 
possible violation, condition, or practice . . . .'' Under the proposed 
rule, the person's statement must also include ``the basis for the 
person's assertion that the regulatory authority has not taken action 
with respect to the possible violation.'' The latter provision reflects 
the fact that, most often, a State regulatory authority will address a 
potential violation when the State regulatory authority is made aware 
of the situation.
    Under this section of the proposed rule, OSMRE would verify whether 
the individual requesting the Federal inspection notified the State 
regulatory authority. As with the ``reason to believe'' standard in 
Sec.  842.11(b)(1), OSMRE would consider any readily available 
information, including any information that the citizen or the State 
regulatory authority provides, in our ``reason to believe'' 
determination. OSMRE may verify the person's compliance with this 
section, and the State regulatory authority's action or inaction 
relative to the alleged violation, using a variety of methods, not 
limited to the examples that follow. OSMRE may directly communicate 
with the State regulatory authority to obtain any readily available 
information, or rely on other readily available information, such as 
information in permit files, public records, or documentation that the 
person provides in connection with the request for a Federal 
inspection. OSMRE may also obtain the status of the situation if the 
State regulatory authority acknowledges in writing that the requester 
previously notified the State regulatory authority of the possible 
violation, and the State regulatory authority sets forth whether it has 
acted or not with respect to the possible violation. Again, OSMRE does 
not deem this list of examples to be exhaustive, and OSMRE may select 
other mechanisms to verify that the requester properly notified the 
State regulatory authority of the existence of a possible violation, 
and to ascertain the status of the State regulatory authority's 
response to the possible violation.
    Finally, in order to conform and update the regulations to modern, 
generally accepted, and efficient mechanisms of communication, the 
proposed rule would provide that, in addition to providing a phone 
number and physical address, any person who requests a Federal 
inspection should include an email address, if one is available, so 
that OSMRE may contact the requester.
    In Sec.  842.12(a), the proposed rule would replace the term ``a 
person'' with the term ``any person'' to mirror the language of section 
521(a) of SMCRA.
    Please note that, under the proposed rule change in Sec.  
842.12(a), when OSMRE determines whether a violation exists for 
purposes of issuing a TDN or determining whether to conduct a Federal 
inspection, a State regulatory program issue would not qualify as a 
possible violation. Similarly, OSMRE would not consider a State 
regulatory authority's failure to enforce its State regulatory program 
as a violation that warrants a TDN or Federal inspection. The TDN and 
Federal inspection process in section 521(a) applies to oversight 
enforcement about violations at individual operations. Congress 
differentiated this type of individual operation oversight from the 
State regulatory program enforcement provisions of section 521(b). 
Based on this distinction, the existing 30 CFR part 733 addresses State 
regulatory program issue enforcement identified in section 521(b). As 
discussed in the next section of the preamble, the proposed rule would 
add new provisions to 30 CFR part 733, so that OSMRE may also address 
potential problems for individual permits under the part 733 
regulations. As proposed, the changes to 30 CFR part 733 discussed 
below would not address the types of issues that qualify as violations 
under the TDN and Federal inspection process in section 521(a). 
However, OSMRE could still take appropriate oversight enforcement 
actions in the event that there is an on-the-ground violation, or such 
a violation could be imminent. The proposed modifications to 30 CFR 
part 733 are discussed below.

G. 30 CFR part 733

    As it currently exists, this part establishes requirements for the 
maintenance of State regulatory programs, and procedures for 
substituting Federal enforcement of State regulatory programs or OSMRE 
withdrawal of approval of State regulatory programs.
    Throughout OSMRE's 42 years of implementing and overseeing SMCRA 
and State regulatory programs, OSMRE has observed that early 
identification of and corrective action to address problems is critical 
to strong enforcement of SMCRA. If problems remain unaddressed, they 
may result in a State regulatory authority's ineffective

[[Page 28912]]

implementation, administration, enforcement, or maintenance of its 
State regulatory program. To prevent this from occurring and to 
encourage a more complete and efficient implementation of SMCRA, the 
proposed rule would enhance the provisions of 30 CFR part 733. Proposed 
Sec.  733.5 would define the terms ``action plan'' and ``State 
regulatory program issue.'' Proposed Sec.  733.12 would address how 
early identification of and corrective action for State regulatory 
program issues can be achieved. OSMRE considers these additions to the 
regulations beneficial for early identification, evaluation, and 
resolution of potential problems that may impact a State regulatory 
authority's ability to effectively implement, administer, enforce, or 
maintain its State regulatory program. Further, these proposed 
mechanisms would avoid unnecessary substitution of Federal enforcement 
and minimize the number of on-the-ground violations.
    Additionally, in the sections that would be added or revised 
throughout 30 CFR part 733, the proposed rule would add the term 
``regulatory'' between the terms ``State'' and ``program.'' Specific 
wording is discussed in each proposed section, below. OSMRE finds these 
to be nonsubstantive changes made for the purpose of clarity; if 
incorporated into a final rule, these changes would clearly 
differentiate between a regulatory program administered by OSMRE and a 
State regulatory program that is administered by a State that has 
achieved primacy after approval by OSMRE.
Proposed Sec.  733.5--Definitions
    The proposed rule would add a definition section to 30 CFR part 
733. The proposed rule would define the terms ``action plan'' and 
``State regulatory program issue.'' In short, under the proposed 
definition, the term ``action plan'' would mean ``a detailed schedule 
OSMRE prepares to identify specific requirements a State regulatory 
authority must achieve in a timely manner to resolve State regulatory 
program issues identified during oversight of State regulatory 
programs.'' Historically, OSMRE and State regulatory authorities have 
used action plans as a compliance strategy and documented their use in 
the Annual Evaluation Reports that OSMRE compiles to discuss, among 
other things, the status of State regulatory programs. Therefore, the 
proposed inclusion of a definition for the term ``action plan'' in the 
regulations would not place a new burden on State regulatory 
authorities, but would merely create regulatory certainty and promote 
uniform application.
    Similarly, the proposed rule would define the term ``State 
regulatory program issue'' to mean:

an issue we identified during our oversight of a State or Tribal 
regulatory program that could result in a State regulatory authority 
not effectively implementing, administering, enforcing, or 
maintaining all or any portion of its State regulatory program, 
including instances when a State regulatory authority has not 
adopted and implemented program amendments that are required under 
30 CFR 732.17 and 30 CFR Subchapter T, and issues related to the 
requirement in section 510(b) of the Act that a regulatory authority 
must not approve a permit or revision to a permit unless the 
regulatory authority finds that the application is accurate and 
complete and that the application is in compliance with all 
requirements of the Act and the State regulatory program.

    Generally, OSMRE identifies State regulatory program issues during 
oversight of a State regulatory program. In short, State regulatory 
program issues are those that may result in a State regulatory 
authority not adhering to its approved, State regulatory program. Other 
examples of a State regulatory program issue include when a State 
regulatory authority does not adopt and implement program amendments 
that are required under 30 CFR 732.17 and 30 CFR Subchapter T. The 
proposed definition would also include issues related to the 
requirement in SMCRA section 510(b), 30 U.S.C. 1260(b), that a 
regulatory authority must not approve a permit or permit revision, 
unless the regulatory authority finds that the application is accurate 
and complete and is in compliance with all of SMCRA's requirements and 
those of the approved program.
    As discussed above in relation to the proposed changes to 30 CFR 
part 842, the TDN and Federal inspection process in section 521(a) of 
SMCRA and the State regulatory program enforcement provisions in 
section 521(b) of SMCRA, along with the existing implementing 
regulations, differentiate between issues related to a State regulatory 
authority's failure to implement, administer, maintain, and enforce all 
or a part of a State regulatory program and possible violations that 
could lead to a TDN or Federal inspection. Most notably, the State 
regulatory program enforcement provisions of section 521(b) of SMCRA 
generally address systemic programmatic problems with a State 
regulatory program, not specific violations exclusive to an individual 
operation or permit as detailed in section 521(a) of SMCRA. However, 
citizens sometimes identify State regulatory program issues in citizen 
complaints under section 521(a) of SMCRA and 30 CFR part 842. OSMRE may 
also become aware of a State regulatory program issue while overseeing 
enforcement of specific operations or permits. As discussed above in 
connection with proposed Sec.  842.11(b)(1)(ii)(B)(3), the proposed 
rule would modify the definition of ``appropriate action'' to further 
clarify the differences between possible violations, which may warrant 
issuance of a TDN or a Federal inspection on specific permits, and 
systemic, programmatic issues, which are not appropriately addressed 
through the TDN or Federal inspection process. SMCRA and the existing 
regulations provide a remedy for systemic, programmatic issues at 30 
CFR part 733 by identifying procedures for substituting Federal 
enforcement of State regulatory programs or withdrawing approval of 
State regulatory programs. The proposed addition of early 
identification and corrective action to address State regulatory 
program issues would enhance our ability to ensure prompt resolution of 
issues, which, if unattended, may result in OSMRE exercising the rare 
remedy of substituting Federal enforcement. Specifically, if the 
proposed inclusion of an ``action plan,'' as proposed in Sec.  
733.5(a), is finally adopted, an ``appropriate action'' that a State 
might take, as explained in proposed Sec.  842.11(b)(1)(ii)(B)(3), 
could include OSMRE and the State regulatory authority immediately and 
jointly initiating steps to implement corrective action to resolve any 
issue that the authorized representative and applicable Field Office 
Director identify as a State regulatory program issue. The proposed 
modification to 30 CFR 842.11(b)(1)(ii)(B)(3), coupled with the 
proposed definition of ``State regulatory program issue,'' is designed 
to further clarify the differences between the types of violations or 
issues that would be addressed by the TDN and Federal inspection 
process in section 521(a) and the State regulatory program enforcement 
provisions in section 521(b) of SMCRA, respectively.
    While OSMRE may sometimes identify State regulatory program issues 
during the TDN process, as discussed in the preceding paragraph, at 
other times, as referenced earlier in this preamble, OSMRE may identify 
and address State regulatory program issues before, and instead of, 
initiating the TDN process. For example, over the years, various 
groups, including citizens, State regulatory authorities, and industry,

[[Page 28913]]

have raised the issue of how OSMRE deals with alleged problems in a 
permit that a State regulatory authority has issued to a permittee. 
This proposed rule would address these types of issues in the proposed 
additions to the regulations at 30 CFR part 733. As discussed above, 
SMCRA provides textual support for this approach. However, as 
previously discussed earlier in this preamble, even when a State 
regulatory authority and OSMRE are engaged in the proposed Part 733 
process, the State regulatory authority could still take direct 
enforcement action under its State regulatory program. Additionally, 
OSMRE could still take appropriate oversight enforcement actions, in 
the event that there is or may be an imminent on-the-ground violation. 
It should be noted that an imminent on-the-ground violation is 
different from ``[i]mminent danger to the health and safety of the 
public,'' as defined at 30 CFR 701.5. Like other changes proposed in 
this rulemaking, the proposed additions to 30 CFR part 733 should 
provide greater regulatory stability and certainty in relationship to 
State regulatory program issues and how these issues will be addressed 
to all interested parties, including citizens, State regulatory 
authorities, and permittees. OSMRE has addressed mechanisms for 
handling State regulatory program issues in various ways outside the 
context of rulemaking, but uncertainty among the regulated community 
and State regulatory authorities remain. The proposed rule would 
resolve the issue in the context of this rulemaking initiative by 
clearly differentiating between the types of violations or issues that 
would be addressed by the TDN and Federal inspection process outlined 
in section 521(a) and the State regulatory program enforcement 
provisions in section 521(b) of SMCRA.
    In sum, these proposed changes would ensure a more complete 
enforcement of SMCRA, and provide guidance on early detection of 
potential problems that may, if left unaddressed, escalate to the point 
that OSMRE considers substituting Federal enforcement procedures as 
outlined in existing 30 CFR 733.12 through 733.13.
Proposed 733.12--Early Identification and Corrective Action To Address 
State Regulatory Program Issues
    The proposed rule would redesignate certain sections of existing 30 
CFR part 733 to accommodate both the proposed new definition section at 
30 CFR 733.5, discussed above, and a new proposed Sec.  733.12 
entitled, ``Early identification and corrective action to address State 
regulatory program issues.'' Because this rulemaking proposes to number 
the new, proposed section as 733.12, the proposed rule would re-
designate existing Sec.  733.12 as 733.13 and existing Sec.  733.13 as 
733.14. Additionally, the proposed rule would replace references to 
Sec.  733.12 in the existing regulations with references to Sec.  
733.13 in the proposed rule, in accordance with the new section 
numbering to accommodate the addition of proposed new Sec.  733.12. In 
particular, in existing Sec.  733.10, the proposed rule would replace 
the reference to 30 CFR 733.12(a)(2) with a reference to 30 CFR 
733.13(a)(2). Similarly, in existing Sec.  736.11(a)(2), the proposed 
rule would replace the reference to ``Sec.  733.12'' with a reference 
to ``Sec.  733.13.'' Also, in existing Sec.  733.10, the proposed rule 
would change a reference from ``OSM'' to ``OSMRE'' for consistency.
    Proposed Sec.  733.12 would contain the substantive mechanisms and 
compliance strategies that OSMRE would use to resolve a State 
regulatory program issue (as defined in proposed 30 CFR 733.5) that 
OSMRE becomes aware of during oversight of a State regulatory program 
or from information OSMRE receives from any person. Although OSMRE has 
historically worked closely with the State regulatory authorities and 
used similar approaches, incorporating these approaches into the 
regulations would provide a clear mechanism for early identification 
and resolution of issues that would enable OSMRE to achieve regulatory 
certainty and uniform implementation of the procedures among State 
regulatory authorities. This proposed addition to the regulations would 
include procedures for developing an action plan (as defined in 
proposed 30 CFR 733.5) so that OSMRE can ensure that State regulatory 
program issues are timely resolved.
    When OSMRE identifies a State regulatory program issue, proposed 
Sec.  733.12(a) would provide that the Director should take action to 
make sure that the issue does not escalate to the point that might give 
the Director reason to believe that the State regulatory authority is 
not effectively implementing, administering, enforcing, or maintaining 
all or a part of its State regulatory program, which could otherwise 
lead to substituting Federal enforcement of a State regulatory program 
or withdrawing approval of a State regulatory program as provided in 30 
CFR part 733. OSMRE would use the proposed procedures in proposed Sec.  
733.12 to attempt to achieve resolution of the issue in a timely and 
effective manner. It is emphasized that proposed Sec.  733.12 would 
not, in any manner, diminish the requirements of existing 30 CFR 733.12 
(that would be re-designated as 30 CFR 733.13 under this proposed rule) 
or our responsibilities associated with substituting Federal 
enforcement of State regulatory programs or withdrawing approval of 
State regulatory programs under the appropriate circumstances. Instead, 
this proposed procedure supplements the existing process in order to 
identify problems before State regulatory program issues rise to the 
level of warranting the rare remedy of substituting Federal 
enforcement. In the event OSMRE has reason to believe that the State 
regulatory authority is not effectively implementing, administering, 
enforcing, or maintaining its State regulatory program, OSMRE would use 
existing 30 CFR 733.12 (that would be redesignated as Sec.  733.13) and 
all other applicable provisions to respond appropriately. In contrast, 
if the State regulatory program issue does not rise to the level of 
requiring OSMRE to substitute Federal enforcement, OSMRE may initiate 
the proposed process for early identification and corrective action 
found in proposed Sec.  733.12(b). Inherent in the previous statement 
is the supposition that the State regulatory program issue is a 
programmatic problem, not a possible violation warranting a TDN or 
Federal inspection, as contemplated in section 521(a)(1) of SMCRA; if 
it is a possible violation, OSMRE would use the TDN procedures if OSMRE 
has reason to believe that a violation exists.
    In general, proposed Sec.  733.12(b) would allow the OSMRE 
Director, or his or her delegate, as set forth in OSMRE's guidance, to 
``employ any number of compliance strategies to ensure that the State 
regulatory authority corrects State regulatory program issues in a 
timely and effective manner.'' OSMRE suggests that possible compliance 
strategies might include, but are not limited to:
     OSMRE engaging in informal discussions with the State 
regulatory authority regarding possible resolutions of the issue;
     OSMRE and the State regulatory authority participating in 
the program amendment process as outlined in 30 CFR 732.17;
     OSMRE suggesting changes in the State regulatory 
authority's procedures, use of resources, or training of staff;
     OSMRE providing technical assistance or initiating 
targeted special studies that our technical experts would conduct;
     OSMRE increasing our number of oversight inspections 
beyond the statutory minimum or providing more

[[Page 28914]]

OSMRE inspection teams to supplement the State regulatory authority's 
inspection resources;
     OSMRE conducting a formal audit of the State regulatory 
authority's permitting and compliance activities;
     OSMRE conducting public fact-finding hearings related to 
the State regulatory program issue; or
     OSMRE devising enhanced tracking procedures to determine 
if the State regulatory program issue represents a systemic problem.
    Although the above list reflects examples of potential corrective 
actions that a State regulatory authority and OSMRE might jointly 
employ, the list is not exhaustive. In fact, OSMRE recommends a case-
by-case analysis of the State regulatory program issue. This would 
allow the State regulatory authority and OSMRE to develop a 
specifically tailored, innovative solution to the State regulatory 
program issue that is designed to achieve timely resolution.
    Generally, OSMRE does not anticipate that resolution of a State 
regulatory program issue should exceed 180 days. However, the proposed 
rule at Sec.  733.12(b) would provide that if the OSMRE Director or 
delegate ``does not expect that the State regulatory authority will 
resolve the State regulatory program issue within 180 days after 
identification or that it is likely to result in an on-the-ground 
violation, then the Director or delegate will develop and institute an 
action plan [as defined in proposed Sec.  733.5].'' In proposed Sec.  
733.12(b)(1), OSMRE would prepare a written action plan with sufficient 
``specificity to identify the State regulatory program issue and an 
effective mechanism for timely correction.'' When OSMRE is preparing 
the action plan, OSMRE would consider any input it receives from the 
State regulatory authority. When selecting corrective measures to 
integrate into the action plan, OSMRE may consider any established or 
innovative solutions, including the compliance strategies referenced 
above. Additionally, proposed Sec.  733.12(b)(2) states that ``[a]ction 
plans will identify any necessary technical or other assistance that 
the Director or his or her delegate can provide and remedial measures 
that a State regulatory authority must take immediately.'' It is 
important for OSMRE to assist the State regulatory authorities in any 
way to ensure successful implementation of their respective State 
regulatory programs. This provision also recognizes that OSMRE might 
identify a State regulatory program issue that requires immediate 
remedial measures, and the action plan would reflect that fact.
    The balance of this proposed section, at Sec.  733.12(b)(3), 
describes the contents of action plans. To ensure that OSMRE can 
adequately track actions plans and that the underlying State regulatory 
program issue is resolved, under the proposed rule each action plan 
would be required to include: A specific ``action plan identification 
number''; ``a concise title and description of the State regulatory 
program issue''; ``explicit criteria for establishing when complete 
resolution will be achieved''; ``explicit and orderly sequence of 
actions the State regulatory authority must take to remedy the 
problem''; ``a schedule for completion of each action in the 
sequence''; and ``a clear explanation that if the action plan, upon 
completion, does not result in the correction of the State regulatory 
program issue, the provisions of 30 CFR 733.13 [existing Sec.  733.12] 
may be triggered.''
    Proposed Sec.  733.12(c) reiterates that OSMRE will track all 
identified State regulatory program issues. As part of OSMRE oversight 
responsibilities, each year OSMRE develops a performance agreement and 
evaluation plan to guide oversight activities within each primacy 
State. That process includes solicitation and consideration of public 
input and involves collaboration with the respective State. At the end 
of the evaluation period, OSMRE prepares an Annual Evaluation report. 
As proposed, this section would also require OSMRE to report the issues 
in the applicable State regulatory authority's Annual Evaluation 
report.
    Finally, proposed Sec.  733.12(d) would emphasize that nothing in 
the proposed new section ``prevents a State regulatory authority from 
taking direct enforcement action in accordance with its State 
regulatory program, or [us] from taking appropriate oversight 
enforcement action, in the event that a previously identified State 
regulatory program issue results in or may imminently result in an on-
the-ground violation.'' In context, ``imminence'' may vary, and OSMRE 
will rely on our authorized representative to use his or her 
professional judgment to determine whether an on-the-ground violation 
is imminent in a given situation.

IV. Procedural Matters

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This proposed rule would not affect a taking of private property or 
otherwise have takings implications under Executive Order 12630. The 
proposed rule primarily concerns Federal oversight of State regulatory 
programs and enforcement when permittees and operators are not 
complying with the law. Therefore, the proposed rule would not result 
in private property being taken for public use without just 
compensation. A takings implication assessment is not required.

Executive Order 12866--Regulatory Planning and Review and Executive 
Order 13563--Improving Regulation and Regulatory Review

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has not deemed this proposed rule 
significant because it would not have a $100 million annual impact on 
the economy, raise novel legal issues, or create significant impacts. 
The proposed rule would primarily clarify the existing regulations to 
reduce the burden upon the regulated community and preserve resources 
by allowing for greater cooperation between the Federal Government and 
the States.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, reduce uncertainty, and use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The Executive Order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. Executive Order 13563 emphasizes 
further that agencies must base regulations on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. This proposed rule has 
been developed in a manner consistent with these requirements.

Executive Order 13771--Reducing Regulation and Controlling Regulatory 
Costs

    This proposed rule describes a proposed deregulatory action. 
Consistent with Executive Order 13771 and the April 5, 2017, Guidance 
Implementing Executive Order 13771, the proposed rule, if finalized, 
will have total costs less than zero.

[[Page 28915]]

Executive Order 12988--Civil Justice Reform

    This proposed rule complies with the requirements of Executive 
Order 12988. Among other things, this rule:
    (a) Satisfies the criteria of Section 3(a) requiring that all 
regulations be reviewed to eliminate drafting errors and ambiguity; be 
written to minimize litigation; and provide clear legal standards for 
affected conduct; and
    (b) satisfies the criteria of Section 3(b) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Executive Order 13132--Federalism

    Under the criteria in Section 1 of Executive Order 13132, this 
proposed rule does not have sufficient federalism implications to 
warrant the preparation of a federalism summary impact statement. While 
clarification of the existing regulations would have a direct effect on 
the States and the Federal Government's relationship with the States, 
this effect is not significant as it neither imposes substantial 
unreimbursed compliance costs on States nor preempts State law. 
Furthermore, this proposed rule would not have a significant effect on 
the distribution of power and responsibilities among the various levels 
of government. The proposed rule would reduce burdens on State 
regulatory authorities and more closely align the regulations to SMCRA. 
A federalism summary impact statement is not required.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. OSMRE has evaluated this proposed 
rule under the Department's consultation policy and under the criteria 
in Executive Order 13175 and have determined that it would not have 
substantial direct effects on federally recognized Tribes and that 
consultation under the Department's tribal consultation policy is not 
required. Currently, no Tribes have achieved primacy; therefore, OSMRE 
regulates all surface coal mining and reclamation operations on Indian 
lands with tribal input and assistance. Currently, OSMRE works in 
conjunction with the Crow, Hopi, and Navajo regarding enforcement of 
surface coal mining and reclamation operations. This proposed 
rulemaking would not directly impact the Tribes. However, because they 
have expressed interest in perhaps having their own regulatory programs 
in the future, OSMRE has coordinated with the Crow, Hopi, and Navajo to 
inform them of, and to provide updates on the progress of, our proposed 
rulemaking.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rule that is: (1) Considered significant under 
Executive Order 12866, and (2) likely to have a significant adverse 
effect on the supply, distribution, or use of energy; or is designated 
as a significant energy action by the Office of Management and Budget. 
Because this proposed rule is not deemed significant under Executive 
Order 12866 and is not expected to have a significant adverse effect on 
the supply, distribution, or use of energy, a Statement of Energy 
Effects is not required.

Executive Order 13045--Protection of Children From Environmental Health 
Risks and Safety Risks

    This proposed rule is not subject to Executive Order 13045 because 
this is not an economically significant regulatory action as defined by 
Executive Order 12866; and this action would not concern environmental 
health or safety risks disproportionately affecting children.

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) (15 U.S.C. 3701 note et seq.) directs Federal agencies to 
use voluntary consensus standards when implementing regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. This proposed rule would not be subject to the 
requirements of section 12(d) of the NTTAA because application of those 
requirements would be inconsistent with SMCRA, and the requirements 
would not be applicable to this proposed rulemaking.

National Environmental Policy Act

    OSMRE has made a preliminary determination that the changes to the 
existing regulations that would be made under this proposed rule are 
categorically excluded from environmental review under the National 
Environmental Policy Act (NEPA). 42 U.S.C. 4321 et seq. Specifically, 
OSMRE has determined that the proposed rule is administrative or 
procedural in nature in accordance with the Department of the 
Interior's NEPA regulations at 43 CFR 46.210(i). The regulation 
provides a categorical exclusion for, ``[p]olicies, directives, 
regulations, and guidelines: that are of an administrative, financial, 
legal, technical, or procedural nature; or whose environmental effects 
are too broad, speculative, or conjectural to lend themselves to 
meaningful analysis . . . .'' The proposed rule primarily seeks to 
clarify how OSMRE formulates reason to believe in the TDN context and 
the information OSMRE considers in this analysis. As such, the proposed 
rule would merely clarify OSMRE's process. Therefore, OSMRE deems the 
proposed changes to the regulations to be administrative and procedural 
in nature, as these proposed changes ensure regulatory certainty. These 
clarifications would result in efficiency and enhanced collaboration 
among State regulatory authorities and OSMRE. OSMRE has also determined 
that the proposed rule does not involve any of the extraordinary 
circumstances listed in 43 CFR 46.215 that would require further 
analysis under NEPA. OSMRE will continue to review these factors as the 
proposed rule is evaluated.

Paperwork Reduction Act

    This proposed rule would not impose a collection of information 
burden, as defined by 44 U.S.C. 3502, upon any entity defined in the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Regulatory Flexibility Act

    Based on OSMRE's collaboration with State regulatory authorities 
and years of experience, OSMRE certifies that this proposed rule would 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The Regulatory Flexibility Act generally requires Federal agencies to 
prepare a regulatory flexibility analysis for rules that are subject to 
the notice-and-comment rulemaking requirements under the Administrative 
Procedure Act (5 U.S.C. 553), if the rule would have a significant 
economic impact on a substantial number of small entities. See 5 U.S.C. 
601-612.

Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rule under the Small Business 
Regulatory Enforcement Fairness Act. 5 U.S.C. 804(2). Specifically, the 
proposed rule: (a) Would not have an annual effect on

[[Page 28916]]

the economy of $100 million or more; (b) would not cause a major 
increase in costs or prices for consumers, individual industries, 
Federal, State, or local government agencies, or geographic regions; 
and (c) would not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United-States based enterprises to compete with foreign-based 
enterprises in domestic and export markets.

Unfunded Mandates Reform Act

    This proposed rule would not impose an unfunded mandate on State, 
local, or Tribal governments, or the private sector, of $100 million or 
more in any given year. The proposed rule would not have a significant 
or unique effect on State, local, or Tribal governments, or the private 
sector. A statement containing the information required by the Unfunded 
Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects

30 CFR Part 733

    Intergovernmental relations, Surface mining, Underground mining.

30 CFR Part 736

    Coal mining, Intergovernmental relations, Surface mining, 
Underground mining.

30 CFR Part 842

    Law enforcement, Surface mining, Underground mining.

Casey Hammond,
Principal Deputy Assistant Secretary, Exercising the authority of the 
Assistant Secretary, Land and Minerals Management.

    For the reasons set out in the preamble, the Department of the 
Interior, acting through OSMRE, proposes to amend 30 CFR parts 733, 736 
and 842 as follows:

PART 733--EARLY IDENTIFICATION OF CORRECTIVE ACTION, MAINTENANCE OF 
STATE PROGRAMS, PROCEDURES FOR SUBSTITUTING FEDERAL ENFORCEMENT OF 
STATE PROGRAMS, AND WITHDRAWING APPROVAL OF STATE PROGRAMS

0
1. The authority citation for part 733 is revised to read as follows:

    Authority:  30 U.S.C. 1201 et seq.

0
2. The heading of part 733 is revised as set forth above.
0
3. Add Sec.  733.5 to read as follows:


Sec.  733.5  Definitions.

    As used in this part, the following terms have the specified 
meanings:
    Action plan means a detailed schedule OSMRE prepares to identify 
specific
    requirements a regulatory authority must achieve in a timely manner 
to resolve State regulatory program issues identified during oversight 
of State regulatory programs.
    State regulatory program issue means an issue OSMRE identifies 
during oversight of a State or Tribal regulatory program that could 
result in a State regulatory authority not effectively implementing, 
administering, enforcing, or maintaining all or any portion of its 
State regulatory program, including instances when a State regulatory 
authority has not adopted and implemented program amendments that are 
required under 30 CFR 732.17 and 30 CFR Subchapter T, and issues 
related to the requirement in section 510(b) of the Act that a State 
regulatory authority must not approve a permit or revision to a permit 
unless the State regulatory authority finds that the application is 
accurate and complete and that the application is in compliance with 
all requirements of the Act and the State regulatory program.
0
4. Revise Sec.  733.10 to read as follows:


Sec.  733.10  Information collection.

    The information collection requirement contained in 30 CFR 
733.13(a)(2) has been approved by the Office of Management and Budget 
under 44 U.S.C. 3507 and assigned clearance number 1029-0025. The 
information required is needed by OSMRE to verify the allegations in a 
citizen request to evaluate a State program and to determine whether an 
evaluation should be undertaken.
0
5. Redesignate Sec. Sec.  733.12 and 733.13 as Sec. Sec.  733.13 and 
733.14 respectively.
0
6. Add a new Sec.  733.12 to read as follows:


Sec.  733.12  Early identification and corrective action to address 
State regulatory program issues.

    (a) When the Director identifies a State regulatory program issue, 
he or she should take action to make sure the identified State 
regulatory program issue is corrected as soon as possible in order to 
ensure that it does not escalate into an issue that would give the 
Director reason to believe that the State regulatory authority is not 
effectively implementing, administering, enforcing, or maintaining all 
or a portion of its State regulatory program.
    (1) The Director may become aware of State regulatory program 
issues through oversight of State regulatory programs or as a result of 
information received from any person.
    (2) If the Director concludes that the State regulatory authority 
is not effectively implementing, administering, enforcing, or 
maintaining all or a portion of its State regulatory program, the 
Director may substitute Federal enforcement of a State regulatory 
program or withdraw approval of a State regulatory program as provided 
in part 733.
    (b) The Director or his or her delegate may employ any number of 
compliance strategies to ensure that the State regulatory authority 
corrects State regulatory program issues in a timely and effective 
manner. However, if the Director or delegate does not expect that the 
State regulatory authority will resolve the State regulatory program 
issue within 180 days after identification or that it is likely to 
result in an on-the-ground violation, then the Director or delegate 
will develop and institute an action plan.
    (1) Action plans will be written with specificity to identify the 
State regulatory program issue and an effective mechanism for timely 
correction.
    (2) Action plans will identify any necessary technical or other 
assistance that the Director or his or her delegate can provide and 
remedial measures that a State regulatory authority must take 
immediately.
    (3) Action plans must also include:
    (i) An action plan identification number;
    (ii) A concise title and description of the State regulatory 
program issue;
    (iii) Explicit criteria for establishing when complete resolution 
will be achieved;
    (iv) Explicit and orderly sequence of actions the State regulatory 
authority must take to remedy the problem;
    (v) A schedule for completion of each action in the sequence; and
    (vi) A clear explanation that if the action plan, upon completion, 
does not result in correction of the State regulatory program issue, 
the provisions of 30 CFR 733.13 may be triggered.
    (c) All identified State regulatory program issues must be tracked 
and reported in the applicable State regulatory authority's Annual 
Evaluation report. Within each report, benchmarks identifying progress 
related to resolution of the State regulatory program issue must be 
documented.
    (d) Nothing in this section prevents a State regulatory authority 
from taking direct enforcement action in accordance with its State 
regulatory program, or OSMRE from taking appropriate

[[Page 28917]]

oversight enforcement action, in the event that a previously identified 
State regulatory program issue results in or may imminently result in 
an on-the-ground violation.

PART 736--FEDERAL PROGRAM FOR A STATE

0
7. The authority citation for part 736 continues to read as follows:

    Authority:  30 U.S.C. 1201 et seq., as amended; and Pub. L. 100-
34.

0
8. Revise Sec.  736.11(a)(2) to read as follows:


Sec.  736.11  General procedural requirements.

    (a) * * *
    (2) The Director shall promulgate a complete Federal program for a 
State upon the withdrawal of approval of an entire State program under 
Sec.  733.13.
* * * * *

PART 842--FEDERAL INSPECTIONS AND MONITORING

0
9. The authority citation for part 842 continues to read as follows:

    Authority:  30 U.S.C. 1201 et seq.

0
10. Amend Sec.  842.11 by revising paragraphs (b)(1) introductory text, 
(b)(1)(i), (b)(1)(ii)(A), (b)(1)(ii)(B)(1), (3) and (4), and (b)(2) to 
read as follows:


Sec.  842.11  Federal inspections and monitoring.

* * * * *
    (b)(1) An authorized representative of the Secretary will 
immediately conduct a Federal inspection:
    (i) When the authorized representative has reason to believe on the 
basis of any information readily available to him or her (other than 
information resulting from a previous Federal inspection) that there 
exists a violation of the Act, this chapter, the State regulatory 
program, or any condition of a permit or an exploration approval, or 
that there exists any condition, practice, or violation that creates an 
imminent danger to the health or safety of the public or is causing or 
could reasonably be expected to cause a significant, imminent 
environmental harm to land, air, or water resources and--
    (ii)(A) There is no State regulatory authority or the Office is 
enforcing the State regulatory program under section 504(b) or 521(b) 
of the Act and part 733 of this chapter; or
    (B)(1) The authorized representative has notified the State 
regulatory authority of the possible violation and more than ten days 
have passed since notification, and the State regulatory authority has 
not taken appropriate action to cause the violation to be corrected or 
to show good cause for not doing so, or the State regulatory authority 
has not provided the authorized representative with a response. After 
receiving a response from the State regulatory authority, but before a 
Federal inspection, the authorized representative will determine in 
writing whether the standards for appropriate action or good cause have 
been satisfied. A State regulatory authority's failure to respond 
within ten days does not prevent the authorized representative from 
making a determination, and will constitute a waiver of the State 
regulatory authority's right to request review under paragraph 
(b)(1)(iii) of this section.
    * * *
    (3) Appropriate action includes enforcement or other action 
authorized under the approved State program to cause the violation to 
be corrected. Appropriate action may include OSMRE and the State 
regulatory authority immediately and jointly initiating steps to 
implement corrective action to resolve any issue that the authorized 
representative and applicable Field Office Director identify as a State 
regulatory program issue, as defined in 30 CFR part 733.
    (4) Good cause includes:
    (i) The possible violation does not exist under the State 
regulatory program;
    (ii) The State regulatory authority has initiated an investigation 
into a possible violation and as a result has determined that it 
requires a reasonable, specified additional amount of time to determine 
whether a violation exists. When analyzing the State regulatory 
authority's response for good cause, the authorized representative has 
discretion to determine how long the State regulatory authority should 
reasonably be given to complete its investigation of the possible 
violation and will communicate to the State regulatory authority the 
date by which the investigation must be completed. At the conclusion of 
the specified additional time, the authorized representative will re-
evaluate the State regulatory authority's response including any 
additional information provided;
    (iii) The State regulatory authority demonstrates that it lacks 
jurisdiction over the possible violation under the State regulatory 
program;
    (iv) The State regulatory authority demonstrates that it is 
precluded from taking action on the possible violation because an 
administrative review body or court of competent jurisdiction has 
issued an order concluding that the possible violation does not exist 
or that the temporary relief standards of the State regulatory program 
counterparts to section 525(c) or 526(c) of the Act have been 
satisfied; or
    (v) Regarding abandoned sites, as defined in 30 CFR 840.11(g), the 
State regulatory authority is diligently pursuing or has exhausted all 
appropriate enforcement provisions of the State regulatory program.
* * * * *
    (2) An authorized representative will have reason to believe that a 
violation, condition, or practice referred to in paragraph (b)(1)(i) of 
this section exists if the facts that a complainant alleges, or facts 
that are otherwise known to the authorized representative, constitute 
simple and effective documentation of the alleged violation, condition, 
or practice. In making this determination, the authorized 
representative will consider any information readily available to him 
or her, including any information a citizen complainant or the relevant 
State regulatory authority submits to the authorized representative.
* * * * *
0
11. Revise Sec.  842.12(a) to read as follows:


Sec.  842.12  Requests for Federal inspections.

    (a) Any person may request a Federal inspection under Sec.  
842.11(b) by providing to an authorized representative a signed, 
written statement (or an oral report followed by a signed written 
statement) setting forth information that, along with any other readily 
available information, may give the authorized representative reason to 
believe that a violation, condition, or practice referred to in Sec.  
842.11(b)(1)(i) exists. The statement must also set forth the fact that 
the person has notified the State regulatory authority, if any, in 
writing, of the existence of the possible violation, condition, or 
practice, and the basis for the person's assertion that the State 
regulatory authority has not taken action with respect to the possible 
violation. The statement must set forth a phone number, address, and, 
if available, an email address where the person can be contacted.
* * * * *
[FR Doc. 2020-10165 Filed 5-13-20; 8:45 am]
BILLING CODE 4310-05-P