# 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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-24137

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** November 24, 2020
- **Citation:** 85 FR 75150

## Text

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 212S180110; S2D2S SS08011000 SX064A00 21XS501520]
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:

Final rule.

SUMMARY:

On May 14, 2020, the Office of Surface Mining Reclamation and Enforcement (OSMRE) published a proposal to clarify the Federal regulations about how OSMRE notifies State regulatory authorities, via issuance of a ten-day notice (TDN), of possible violations of any requirement of the Surface Mining Control and Reclamation Act of 1977 (SMCRA). This final rule adopts, with minor adjustments, much of OSMRE's proposals to streamline the process for OSMRE's coordination with State regulatory authorities in order to minimize duplication of inspections, enforcement, and administration of SMCRA. This final rule comports with the specific language of SMCRA, remedies internal disparate application of existing regulations, and will operate to ensure more effective enforcement of SMCRA. Additionally, the final rule will enhance the procedures for early identification of, and implementation of corrective action to address, State regulatory program issues.

DATES:

This rule is effective on December 24, 2020.

FOR FURTHER INFORMATION CONTACT:

Kathleen G. Vello, OSMRE, Division of Regulatory Support, 1849 C Street NW, Mail Stop 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:

Preamble Table of Contents

I. Background and Overview of the Final Rule

A. Background

B. Key Provisions of the Final Rule

C. Summary of Changes Since the Proposed Rule

II. Summary of Public Comments

A. Overview of Comments

B. OSMRE Provided an Adequate Period To Comment on the Proposed Rule, and Hearings Were Not Necessary

C. The Final Rule is Properly Characterized as a Clarification

D. This Final Rule Neither Inhibits a Citizen's Ability To Report Violations to OSMRE Nor Limits OSMRE's Ability To Exercise Oversight Enforcement

E. OSMRE's Authorized Representative Will Continue To Formulate “Reason To Believe” As Mandated by SMCRA; This Includes Using Best Professional Judgment

F. It is Important To Clarify That “Any Information” Under 30 U.S.C. 1271(a) Includes Information From the State Regulatory Authority

G. Citizens' Ability To Request Federal Inspections Is Not Diminished

H. OSMRE's Enhancement to the Existing 30 CFR Part 733 Process is Aimed at Addressing State Regulatory Program Issues Early and Promptly Resolving the Issues

I. Interrelationship of 30 CFR Part 733 and 30 CFR Part 842

J. Specific Responses to Other Comments Received About the Proposed Rule

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

IV. Procedural Determinations

A. Statutes

1. Congressional Review Act

2. Data Quality Act

3. National Environmental Policy Act

4. National Technology Transfer and Advancement Act

5. Paperwork Reduction Act

6. Regulatory Flexibility Act

7. Small Business Regulatory Enforcement Fairness Act

8. Unfunded Mandates Reform Act

B. Executive Orders

1. Executive Order 12630—Governmental Actions and Interference With Constitutionally Protected Property Rights

2. Executive Order 12866—Regulatory Planning and Review and Executive Order 13563—Improving Regulation and Regulatory Review

3. Executive Order 12988—Civil Justice Reform

4. Executive Order 13045—Protection of Children From Environmental Health Risks and Safety Risks

5. Executive Order 13132—Federalism

6. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

7. Executive Order 13211—Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

8. Executive Order 13771—Reducing Regulation and Controlling Regulatory Costs

9. Executive Order 13783—Promoting Energy Independence and Economic Growth

I. Background and Overview of the Final Rule

A. Background

SMCRA requires the Secretary of the Interior, acting through OSMRE, to, among other things, “publish and promulgate such rules and regulations as may be necessary to carry out the provisions of [SMCRA]” and to “cooperate with . . . State regulatory authorities to minimize duplication of inspections, enforcement, and administration of [SMCRA].” 30 U.S.C. 1211(c)(2) and (12). Consistent with these statutory obligations, based on OSMRE's 43 years of experience administering SMCRA, after consultation with OSMRE's State regulatory authority partners, and after consideration of public comments received on the proposed rule, OSMRE is finalizing its proposal to enhance the early identification of State regulatory program issues and clarify the regulations found at 30 CFR 842.11 and 842.12 to state, among other things, that, before issuing a notification to a State regulatory authority when a possible violation exists, OSMRE will consider any information readily available. OSMRE's final rule will reduce inefficiencies by ensuring that, before OSMRE issues a TDN to a State regulatory authority, OSMRE considers any readily available information about the alleged violation, including information that a State regulatory authority may provide. OSMRE's consideration of this information is critical because a State regulatory authority has primary enforcement responsibility under its State regulatory program. Thus, the final rule eliminates duplication of inspection and enforcement under SMCRA by clarifying that OSMRE's authorized representative will consider all readily available information, from any source, including any information provided by the State regulatory authority, before issuing a notification of an alleged violation, in the form of a TDN, to that State regulatory authority. Also, the final rule clarifies the meaning of the statutory terms “appropriate action” and “good cause,” as used in 30 CFR 842.11, to better describe the State regulatory authority's action that will qualify as “appropriate action” or scenarios in which a State regulatory authority's inaction may have “good cause” after OSMRE notification that a possible violation exists. Examples of what constitutes a State regulatory authority's “appropriate action” in response to a TDN or “good cause” for not taking an action in response to a TDN are in the existing regulations;

however, in OSMRE's experience, the existing examples and explanations of what qualify as an “appropriate action” or “good cause” for inaction are not exhaustive and do not fully reflect the array of in-the-field scenarios.

In addition, because OSMRE must evaluate whether a State regulatory authority has taken appropriate action or has good cause for inaction with respect to a possible violation, OSMRE has observed that not all issues that are raised in the TDN process warrant a Federal inspection,
1

but they may require further evaluation and action as they may raise issues with how a State is implementing its approved State regulatory program. To address these issues comprehensively and to ensure more complete and efficient enforcement of SMCRA, OSMRE has expanded 30 CFR part 733 to add procedures for corrective action of State regulatory program issues, including implementation of action plans. As finalized, 30 CFR part 733 includes definitions of the terms “action plan” and “State regulatory program issue” and adopts a mechanism for early identification and corrective action to address State regulatory program issues. We refer to these added procedures and definitions in this preamble as the “enhanced Part 733 process.”

1
A Federal inspection in the context of 30 U.S.C. 1271(a) is an inspection of a surface coal mining and reclamation operation conducted by an OSMRE authorized representative.

The final rule is 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.

B. Key Provisions of the Final Rule

OSMRE is adopting the following key provisions from the proposed rule in this final rule:

•
Enhancement of 30 CFR part 733: Early Identification and Corrective Action.

The regulations at existing 30 CFR part 733 establish requirements for the maintenance of State regulatory programs, as well as the procedures for the rare remedy of substituting Federal enforcement for State enforcement of State regulatory programs and withdrawing approval of State regulatory programs. In coordination with State regulatory authorities, OSMRE has determined that mechanisms exist for addressing identified State regulatory program issues to avoid the need to substitute Federal enforcement for State enforcement of a State regulatory program. In this final rule at § 733.12, OSMRE is codifying this existing OSMRE practice of identifying State regulatory program issues and ensuring that prompt corrective action is taken.

•
Clarification of Distinction Between OSMRE Enforcement Actions under 30 U.S.C. 1271(a) and (b).

The TDN and Federal inspection process in 30 U.S.C. 1271(a) applies to oversight enforcement of alleged violations at specific sites. In this preamble, we refer to these types of OSMRE oversight actions (TDNs and Federal inspections) that OSMRE may take under 30 U.S.C. 1271(a) as “site-specific” enforcement actions. Congress differentiated these site-specific enforcement actions from the type of actions that OSMRE may take under the State regulatory program enforcement provisions of 30 U.S.C. 1271(b), which are aimed at ensuring that a State regulatory authority is properly enforcing its approved State program. This type of OSMRE oversight action under 30 U.S.C. 1271(b) is intended to address what we will refer to in this preamble as a “State regulatory program issue” and which could, in the most serious circumstances, result in revocation of all or part of a State program. OSMRE recognizes that its review of State regulatory authority permit issuance guidelines and practices generally are systemic in nature and that those guidelines and practices squarely fall within a State regulatory authority's implementation, administration, enforcement, and maintenance of an approved program. In this final rule, OSMRE further clarifies the distinction between the situations to which 30 U.S.C. 1271(a) and (b) apply, while also recognizing that there may be situations in which OSMRE becomes aware of a State regulatory authority that is not adequately implementing, administering, maintaining, or enforcing a part or all of a State program (governed by 30 U.S.C. 1271(b) and the implementing regulations at 30 CFR part 733) in the course of OSMRE's oversight enforcement of alleged violations at specific mine sites (governed by 30 U.S.C. 1271(a) and the implementing regulations at 30 CFR part 842). In acknowledgement of OSMRE's obligation to resolve 30 U.S.C. 1271(a) site-specific violations and 30 U.S.C. 1271(b) State regulatory program issues using two separate mechanisms, this final rule clarifies in 30 CFR 842.11(b)(1)(ii)(B)(
3
) that a State regulatory authority may be deemed to have taken appropriate action in response to a TDN if corrective action to resolve an identified State regulatory program issue has been initiated consistent with the final rule § 733.12.

•
Nothing in This Final Rule Prevents OSMRE From Issuing A TDN for a Site-Specific Violation.

Despite the two separate enforcement mechanisms outlined in 30 U.S.C. 1271(a) and (b), these SMCRA enforcement provisions may still overlap in practice. As alluded to above, and discussed more thoroughly in response to public comments below, OSMRE maintains its legal position that SMCRA authorizes OSMRE to issue a TDN to a State regulatory authority, if a State regulatory program issue results in or may imminently result in a violation of an approved State program. Specifically, in these situations, under final § 733.12(d), OSMRE may still take a direct site-specific enforcement action.

•
Before Issuing a TDN, OSMRE Will Consider All Readily Available Information From Any Source.

OSMRE proposed to clarify that when formulating a decision about whether there is reason to believe that a possible violation exists for purposes of direct enforcement under 30 U.S.C. 1271(a)(1), it will consider all readily available information, including information it receives from the State regulatory authority, about an alleged violation. (Throughout this preamble, we will, at times, use an abbreviated way of referring to this decision-making process about whether there is reason to believe that a possible violation exists as “formulating reason to believe” or simply as “reason to believe” in quotation marks.) OSMRE is adopting this clarification in this final rule, with a minor modification, which specifies that OSMRE will consider all readily available information it receives from “any source” in order to promote more efficient and effective enforcement of SMCRA.

C. Summary of Changes Since the Proposed Rule

OSMRE has made 11 revisions to the proposed rule in preparing this final rule. These revisions are based on a process of reasoned decision-making, including reliance on over 43 years of OSMRE experience overseeing the implementation of SMCRA, including review of past OSMRE data and practices, meaningful consideration of the 93 comments received from the public, and adherence to plain language principles to ensure regulatory clarity. Specific details of the final rule are

discussed in finer detail in the section-by-section analysis below. For the ease of the public, a summary of the changes from the proposed rule to the rule being finalized today (organized by section, brief summary of the change, and succinct rationale for change) include:

Section No.
Brief summary of change
Rationale

30 CFR 733.5 (definition of “Action plan”)
Insert “State” before “regulatory authority”.
OSMRE maintaining consistency and clarity.

30 CFR 733.12(a)(1)
Substitute “any source” for “any person”.
Accommodate citizen comments to allow the subsection to be more inclusive consistent with the intent of the proposed rule.

30 CFR 733.12(b)
Change “State regulatory program issues” to singular “a State regulatory program issue”.
OSMRE maintaining consistency and clarity.

30 CFR 733.12(b)
Substitute “a violation of the approved State program” for “an on-the-ground violation”.
Accommodate citizen comments and OSMRE evaluation to ensure OSMRE preserves the ability to take enforcement action.

30 CFR 733.12(b)(1)-(3)
Change “action plans” to singular “action plan” in three instances.
OSMRE maintaining consistency and clarity.

30 CFR 733.12(c)
Insert “any associated action plan” after “State regulatory program issues”.
OSMRE evaluation and accommodates citizen comments requesting transparency and review of action plans that are found in Annual Evaluation reports.

30 CFR 733.12(c)
Acknowledge that Annual Evaluations reports will be accessible on OSMRE's website and at the applicable OSMRE office.
Accommodate citizen comments and OSMRE evaluation to ensure transparency to the public.

30 CFR 733.12(d)
Substitute “a violation of the approved State program” for “an on-the-ground violation”.
OSMRE evaluation and accommodates citizen comments about State regulatory program issues that may also result in a site-specific violation.

30 CFR 842.11(b)(1)
Substitute “must” for “will”.

OSMRE maintaining consistency with the
Federal Register
and Plain Language Act.

30 CFR 842.11(b)(1)(i)
Add, “from any source, including any information a citizen complainant or the relevant State regulatory authority submits,”.
OSMRE evaluation to specifically state the intention of the clarification.

30 CFR 842.11(b)(2)
Change to conform to 30 CFR 842.11(b)(1)(i).
Accommodate citizen comments requesting consistency between this subsection and 30 CFR 842.11(b)(1)(i).

II. Summary of Public Comments

A. Overview of Comments

OSMRE received 93 written comments on the proposed rule, consisting of hundreds of pages of text. The majority of the comments received were from individuals, who reside in many different States, including some States that do not have coal mining. The States in which these commenters reside include: Alaska, California, Colorado, Illinois, Indiana, Kentucky, Massachusetts, Missouri, Montana, New Mexico, North Carolina, North Dakota, Pennsylvania, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming. The majority of the individual comments originated from citizens residing in Montana. The 39 comments received from Montana residents were almost identical in nature. As discussed further below, these commenters generally objected to the proposed rule, requested an extended comment period, and suggested that public hearings should be held in the “4 coal regions” within the United States. Additionally, several other individual commenters referenced support for non-governmental organizations (NGOs) within their comments that generally disapproved of the proposed rule without giving specific rationale. For example, six commenters supported Coal River Mountain Watch and provided very similar comments opposed to the proposed rule.

Additionally, many comments either supported other comments and incorporated them by reference or were submitted on behalf of multiple parties. Most of the comments representing multiple parties were submitted on behalf of NGOs. OSMRE received comments from the following NGOs: Alaska Center, Alaska Community Action on Toxics, Appalachian Citizens' Law Center, Appalachian Mountain Advocates, Appalachian Voices, Black Warrior Riverkeeper, Inc., Castle Mountain Coalition, Center for Biological Diversity (CBD), Citizens Against Longwall Mining, Citizens Coal Council (CCC), Coal River Mountain Watch, Conservation Council for Hawaii, Cook Inlet Keeper, Dakota Resource Council, Earthworks, Eastern Pennsylvania Coalition for Abandoned Mine Reclamation, Endangered Habitats League, Foundation for Pennsylvania Watersheds, Gila Resources Information Project, Great Old Broads for Wilderness, Heartwood, Kentuckians for the Commonwealth, Kentucky Resources Council, Inc., National Wildlife Federation, Native Plant Conservation Campaign, NH Audubon, Northern Plains Resource Council, NY4WHALES, Ohio Valley Environmental Coalition, Oil Change International, Powder River Basin Resource Council, Save Our Sky Blue Waters, Save the Scenic Santa Ritas, Sierra Club, Stand Up to Coal, The Lands Council, Trustees for Alaska, Turtle Island Restoration Network, West Virginia Highlands Conservancy, West Virginia Rivers Coalition, Western Nebraska Resources Council, Western Organization of Resource Councils, Western Watersheds Project, WildEarth Guardians, and Wilderness Workshop. With few exceptions, most of these commenters generally objected to the proposed rule, requested that the comment period be extended, and advocated for public hearings. A few of these commenters made suggestions on how to improve the proposed rule. As discussed in detail below, OSMRE has considered these suggestions and, in some circumstances, is adopting the suggestions in the final rule.

The following industry and trade groups submitted comments: Indiana Coal Council, Kentucky Coal Association, National Mining Association (NMA), and Virginia Coal and Energy Alliance. Generally, as discussed more fully below, these commenters supported the proposed rule and made suggestions for improvements. In some circumstances, OSMRE is incorporating suggestions made by these organizations in the final rule.

A few State and quasi-governmental organizations provided comments, including the Central Illinois Healthy Community Alliance and the Interstate Mining Compact Commission (IMCC) representing the following 27 States: Alabama, Alaska, Arizona, Arkansas, Colorado, Illinois, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. One of these commenters was generally opposed to the proposed rule, while the other, IMCC, supported the proposed rule.

B. OSMRE Provided an Adequate Period To Comment on the Proposed Rule and Hearings Were Not Necessary

OSMRE provided a 30-day comment period for the proposed rule. OSMRE received many comments requesting an extension of the comment period from an additional 30 days to an additional 180 days. One commenter, citing one of the purposes of SMCRA at 30 U.S.C. 1202(i), essentially suggested that the alleged absence of “a reasonable comment period” deprived the public of meaningful participation in this rulemaking. OSMRE is aware of this statutory provision, but, as explained below, finds that the 30-day comment period was adequate for meaningful participation in this rulemaking. In contrast to the other commenters, a commenter stated that this rule was “long overdue” and that “additional time is not necessary for the formulation and submittal of comments on a 14-page
Federal Register
notice.” Additionally, many commenters requested that public hearings—virtual or in person when “safe”—be held, and many of those commenters, particularly the 39 commenters from Montana, requested that at least four public hearings be held in different coal regions across the country. Other commenters suggested that SMCRA requires OSMRE to offer to hold public hearings for rulemakings affecting SMCRA's permanent regulatory program. These commenters opine that holding public hearings has been the standard and expected practice.

Section 553(c) of the Administrative Procedure Act (APA) requires that agencies, such as OSMRE, provide “interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without an opportunity for oral presentation.” 5 U.S.C. 553(c). Notably, the APA does not contain a requirement to hold public hearings. It is squarely within OSMRE's discretion to decline to either extend the comment period or offer public hearings or meetings. Additionally, the Office of the Federal Register states that comment periods generally last 30 to 60 days.
See
Office of the Federal Register, “A Guide to the Rulemaking Process,”
available at https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf
(last accessed August 12, 2020). As discussed above, OSMRE received a diverse set of substantive comments from a diverse set of commenters within the 30-day comment period. Based on this and several other reasons, regardless of what other agencies have done with regard to extension requests, the public had a meaningful opportunity to comment with sufficient time to prepare their comments.

First, OSMRE's proposed revisions would not significantly alter OSMRE's implementation of the SMCRA program. As stated in the proposed rule, the proposed changes were primarily intended to clarify a potential ambiguity in OSMRE's existing regulations, eliminate duplicative efforts of OSMRE and the State regulatory authorities when responding to citizen complaints, and enhance procedures for corrective action of State regulatory program issues.
See, e.g.,
85 FR at 28905, 28910. Previously, OSMRE has addressed these issues through guidance documents, such as the memorandum from Director Joseph G. Pizarchik to Regional Directors regarding Application of the Ten-Day Notice Process and Federal Enforcement to Permitting Issues Under Approved Regulatory Programs, which were issued without any opportunity for advance public comment. Memorandum from Director Joseph G. Pizarchik (Nov. 15, 2010). By addressing these issues through the APA rulemaking process, OSM has provided the public an opportunity to comment.

Second, the proposed rule proposed to make only limited changes to the Federal regulations. The changes OSMRE proposed primarily occurred in three sections—30 CFR 733.12, 842.11, and 842.12. The other proposed changes were conforming changes. If this rule was significant, the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) would have classified it as such; however, it has not because this final rule is not expected to have a $100 million annual impact on the economy, raise novel legal issues, or create significant impacts.
See
“Procedural Determinations” below.

Third, as stated in section 6(a)(1) of Executive Order (E.O.) 12866, “before issuing a notice of proposed rulemaking, each agency should, where appropriate, seek the involvement of those who are intended to benefit from and those expected to be burdened by any regulation (including, specifically, State, local, and tribal officials).” The State regulatory authorities were the parties most likely to be affected if the changes in the proposed rule were finalized. As such, before publishing the proposed rule, OSMRE involved the State regulatory authorities by seeking their suggestions on what the proposed rule should accomplish. For example, as part of a program efficiency work group, OSMRE requested that State regulatory authorities provide information about the number of citizen complaints received; the number of TDNs received; whether duplication exists between citizen complaints the State regulatory authority receives directly from citizens and TDNs received from OSMRE; and the amount of time State regulatory authority personnel expend responding to TDNs and citizen complaints that the State regulatory authority receives directly from citizens. In addition, OSMRE directly engaged with its State regulatory authority partners by requesting input on the development of internal OSMRE guidance about TDNs, which, when finalized, were made publicly available on OSMRE's website at
https://www.osmre.gov/lrg/directives.shtm.

Comment:
Although most of the commenters seeking extensions of time or public hearings were general in nature, some of the commenters provided specific rationales for the requests for extensions of time or public hearings. In most circumstances, these specific requests for extensions of time or hearings were prompted by the impacts of the COVID-19 pandemic, including the potential for lack of access to the internet due to library closures and obligations associated with caring for family members infected with COVID-19. Some of these commenters cited other Federal agencies' decisions to extend comment periods because of COVID-19. Other commenters supported an extension of the comment

period because the 30-day comment period included the Memorial Day holiday. Finally, as indicated above, a group of commenters suggested that 30 U.S.C. 1251(b), through its reference to section 1251(a), requires OSMRE to offer to hold public hearings for rulemakings affecting SMCRA's permanent regulatory program. These commenters also opine that holding public hearings has been the standard and expected practice.

Response:
OSMRE recognizes that the comment period for this rule occurred during the COVID-19 pandemic, which may have changed the manner in which people and organizations would have traditionally reviewed and submitted comments on the proposed rule. Although it is true that the pandemic may have changed operating procedures, it is also true that OIRA recognized that “work on behalf of the American people must continue during this period, including work on regulations . . . .”
See
Memorandum from Paul J. Ray, OIRA Administrator (March 23, 2020). OIRA, therefore, declined to issue a “wholesale extension of the comment periods of pending notices of proposed rulemakings . . . .”
Id.
Despite the hardships posed by the pandemic and the existence of a Federal holiday within the comment period, OSMRE received 93 comments from a representative group of interests. In total, these comments presented a thorough examination of the limited number of changes proposed, and the commenters did not appear to be hampered by the length of the comment period.

In addition, OSMRE disagrees with the comment that SMCRA, at 30 U.S.C. 1251(b), requires OSMRE to offer to hold public hearings for rulemakings such as this one. On its face, section 1251(b) applies to the permanent regulatory program that OSMRE promulgated long ago. While OSMRE can still hold public hearings with regard to proposed rules that are published after the permanent program regulations were promulgated, it is not required to do so. For many of the same reasons a 30-day comment period was adequate, including receipt of a diverse set of substantive comments from a diverse set of commenters within the 30-day comment period, OSMRE also finds that public hearings were not necessary to inform OSMRE of the various issues and viewpoints at play. Instead, as explained above, OSMRE obtained a full range of comments from a diverse group of commenters. In sum, OSMRE values public participation in its rulemaking efforts and finds that there was reasonable and adequate public participation in this particular rulemaking.

Comment:
A few commenters stated that OSMRE should extend the comment period beyond 30 days because Federal employees' teleworking arrangements as a result of the COVID-19 pandemic impinged on the commenting process.

Response:
Despite the challenges posed by the COVID-19 pandemic, OSMRE has been diligent in responding to inquiries regarding the proposed rulemaking either via email or telephone. As previously stated, OIRA has made clear that “work on behalf of the American people must continue during this period, including work on regulations . . . .” See Memorandum from Paul J. Ray, OIRA Administrator (March 23, 2020). OSMRE did not shut down or stop its work on behalf of the American people as a result of the COVID-19 pandemic. As is its customary practice, OSMRE specified the methods for submitting comments in the proposed rule. 85 FR at 28904. This included submission of comments via
regulations.gov
or hard copy. The submission of comments on
regulations.gov
was not affected by the pandemic, and OSMRE personnel still regularly collected the comments that were submitted in hard copy.

Comment:
A few commenters cited the Native American population as being disproportionally affected by the COVID-19 pandemic. According to commenters, many of these same population centers are located adjacent to coal mine sites, are affected by the coal mine operations, and need to voice their comments on the proposed rulemaking. Commenters cited the lack of developed information technology infrastructure and widespread COVID-19 illnesses within the Native American community as sufficient reasons to extend the comment period. OSMRE appreciates the commenters' focus on, and is sensitive to, the COVID-19 pandemic's effect on Native American populations.

Response:
No Tribe currently has primacy to regulate surface coal mining operations within its jurisdiction. Because this rule relates to OSMRE's enforcement in primacy States, these revisions will have no direct impact on any Tribe. Once a Tribe obtains primacy, that Tribe would be in the same position as a State regulatory authority. 30 U.S.C. 1300(j). Therefore, OSMRE would consider information from a Tribal regulatory authority, just as OSMRE considers information from a State regulatory authority, in determining whether to issue a TDN to the Tribal regulatory authority. Despite this final rule not affecting any Tribe directly, OSMRE directly engaged with the three Indian Tribes that have either expressed an interest in achieving primacy or that have traditionally had surface coal mining operations—the Navajo Nation and the Hopi and Crow Tribes.
See
“Procedural Determinations,” E.O. 13175—Consultation and Coordination With Indian Tribal Governments, below. In addition, Tribes were able to comment on the proposed rule. To the extent the commenters were concerned about the rule's effects on individual Native Americans, as opposed to Indian Tribes, OSMRE's final rule will not hamper any citizen's ability to submit a citizen complaint to OSMRE. Thus, any citizen, including a Tribal member, can continue to raise concerns to OSMRE about potential SMCRA violations.

Comment:
One commenter cites the ongoing improvements to
regulations.gov,
one of the methods of submitting comments on the proposed rule to OSMRE, as a rationale for extending the comment period.

Response:
OSMRE is aware that
regulations.gov
has been undergoing beta testing since July 2019, and it is fully cooperating with the U.S. General Services Administration (GSA) in its ongoing efforts to improve the experience of a user while participating in the Federal government rulemaking process. Contrary to the commenter's assertions, the core functionality of
regulations.gov
has not been affected by the beta testing. In fact, the
regulations.gov
site has merely been updated to be more accessible to the public and improve the public interface. GSA has characterized the beta testing and associated improvements as efforts to create transparency and expose the public to improvements contemplated for the website and to solicit feedback.
See
Beta Frequently Asked Questions
available at https://beta.regulations.gov/faq?type=beta
(last accessed August 17, 2020). Moreover, the standard
regulations.gov
site is still available, and users may choose the “classic” version if they prefer.
Id.
Therefore, the improvement process for
regulations.gov
was not a basis for extending the comment period.

For all of these reasons, including the limited nature of this rulemaking and the sufficient time available to provide meaningful comment, as evidenced by the diverse and thorough comments received, neither an extension of time nor public hearings were warranted.

C. This Final Rule is Properly Characterized as a Clarification

In the proposed rule, OSMRE characterized the provisions related to 30 CFR part 842 as clarifications because OSMRE primarily sought to remove ambiguity as to what information should be considered by the OSMRE authorized representative when formulating reason to believe that any person is in violation of any requirement of [SMCRA] or any permit condition required by [SMCRA].” 30 U.S.C. 1271(a). Many commenters objected to OSMRE's use of the term clarification to describe the changes to part 842; however, some industry commenters supported this characterization. OSMRE maintains that clarification is an appropriate descriptor. As discussed in more detail in specific comment responses below, several citizen group commenters alleged that OSMRE invented ambiguity in the existing regulations where none existed to justify the regulatory changes. OSMRE strongly disagrees with this assertion.

Due to the complex nature of SMCRA, and coal mining in general, ambiguity has arisen about how OSMRE should perform some of its oversight functions. Through this final rulemaking, OSMRE is seeking to end any ambiguity. Notably, over the years, OSMRE has had varying interpretations of how to administer 30 U.S.C. 1271(a) and the implementing regulations at 30 CFR part 842. An example of disparate implementation of the existing regulations by OSMRE is evidenced by the fact that OSMRE has revised its primary Directive on the TDN process, INE-35, eight times in 33 years—an average of approximately once every four years—each time without taking prior public comment. Tellingly, the various interpretations documented within OSMRE policy have the common theme of attempting to define the right balance of expertise and professional discretion and due diligence. With this final rulemaking, OSMRE has achieved better balance. In proposing this rule, OSMRE closely examined the concepts of expertise and professional discretion and due diligence in its enforcement of SMCRA. For example, when considering an early draft of SMCRA, the House of Representatives recognized the importance of formulating “reasonable belief” based on available information.

When the Secretary receives information from any source that would give rise to a reasonable belief that the standards of the Act are being violated, the Secretary must respond by either ordering an inspection by Federal inspectors during the interim period or, after the interim, notice to the States in the follow-up inspection that the State's response is inadequate. 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.

H.R. Rep. No. 93-1072, at 11 (May 20, 1974).

If OSMRE simply passes along a citizen complaint without considering available information, it is not establishing the requisite reasonable belief that was Congress' intent. Congress recognized the value of relying on the professional competence and capacity of OSMRE staff to ensure effective and efficient processing of citizen complaints. In fact, the Senate Report recognized the importance of OSMRE experts in achieving the twin goals of efficiency and effectiveness for State enforcement programs:

Efficient enforcement is central to the success for the surface mining control program contemplated by S.7. For a number of predictable reasons—including insufficient funding and the tendency for State agencies to be protective of local industry—State enforcement has in the past often fallen short of the vigor necessary to assure adequate protection of the environment. The Committee believes, however, that the implementation of minimal Federal standards, the availability of Federal funds, and the assistance of the experts in the Office of Surface Mining Reclamation and Enforcement in the Department of Interior, will combine to greatly increase the effectiveness of State enforcement programs operating under the Act. While it is confident that the delegation of primary regulatory authority to the States will result in adequate State enforcement, the Committee is also of the belief that a limited Federal oversight role as well as increased opportunity for citizens to participate in the enforcement program are necessary to assure that the old patterns of minimal enforcement are not repeated.

S. Rep. No. 95-128, at 90 (May 10, 1977). These factors have weighed heavily in OSMRE's analysis and the formulation of this final rule. In order to achieve an effective balance of these concepts, OSMRE has always focused on the mandates of SMCRA, including expeditious enforcement. In the final rule, OSMRE's clarifications act to resolve the internal struggle to exercise expertise and professional judgment and due diligence to best implement the existing regulations at 30 CFR part 842, despite the potential ambiguities contained within those regulations. Strategies employed in versions of the INE-35 Directive have included various interpretations of the “reason to believe” standard, what constitutes appropriate action, and how to address various types of violations. The regulations that OSMRE is finalizing today aim to remove the potential ambiguity related to the “reason to believe” standard that made those various interpretations possible. OSMRE's final rule is crafted to create a more uniform, efficient, and transparent process for resolving citizen complaints. These changes do not diminish the public's access to enforcement or reinvent the TDN process.

In response to a commenter's suggestion that OSMRE should provide objective support for this rule, including data, OSMRE notes that it proposed this rulemaking to clarify issues raised by State regulatory authorities and identified by OSMRE's own experience. Additionally, a goal of the proposed rulemaking is to ensure OSMRE uniformly applies the statute and regulations and no disparate application occurs within the agency. Recognizing that there may have been inconsistent application of the existing regulations, analysis of past data is not germane to the rulemaking as the commenter suggests. For example, if various OSMRE authorized representatives applied the existing regulatory language inconsistently, relying on data related to the number of citizen complaints that led to the issuance of TDNs would not illustrate how those authorized representatives might have interpreted the existing regulations in formulating “reason to believe”. Because ensuring that information from the State regulatory authority is considered when formulating “reason to believe” is a major component of this final rule, revisiting individual TDN analyses under previous interpretations of the existing regulations or internal OSMRE policies is not useful or informative.

OSMRE's clarifications harmonize the implementing regulations with congressional intent. These improvements were needed because one possible interpretation of 30 CFR 842.11(b)(2) was that OSMRE's authorized representative was required to find that reason to believe that a violation exists whenever any information submitted to OSMRE would, if true, constitute a violation. Under this possible interpretation, OSMRE would merely serve as a conduit to the State regulatory authority, eviscerating the authority bestowed upon OSMRE by Congress to act with “professional competence and capacity to administer the provisions of [SMCRA].” 30 U.S.C. 1211(a). In practice, if this interpretation were implemented, OSMRE would almost always be required to immediately issue a TDN to the State regulatory authority.

This interpretation removes any aspect of an OSMRE authorized representative's discretion and prevents the authorized representative from exercising best professional judgment. OSMRE's clarification reduces ambiguity in the regulations that could lead to this unwarranted interpretation. Instead, the final rule makes clear that OSMRE's authorized representative, a qualified, trained, professional with SMCRA expertise, is in the best position to consider all readily available information available to him or her before making a determination about whether there is reason to believe a violation exists before deciding whether to issue a TDN. Instead of simply accepting what is submitted to OSMRE as true, under this final rule, OSMRE's authorized representative can review all readily available information, regardless of the source of that information. This change also better aligns the Federal regulations with the carefully crafted language of 30 U.S.C. 1271(a), and, as explained below, reduces duplication of effort between OSMRE and a State regulatory authority as mandated by 30 U.S.C. 1211(c)(12).

The ambiguity in the regulations was leading to inconsistent interpretations of the “reason to believe” standard in the regulations. As discussed more thoroughly below, the comments to the proposed rule illustrate the inconsistent interpretations that existed within OSMRE and among the State regulatory authorities, citizens, and industry. Some have interpreted the regulatory standard in a way that would make OSMRE a mere conduit of citizen complaints to the State regulatory authority while others interpreted the regulatory “reason to believe” standard to evoke more discretion, in the form of OSMRE's authorized representative exercising professional judgment. Additionally, there have been varying views about the type of information that OSMRE's authorized representative should consider and from whom that information originates, with some groups claiming that OSMRE should only consider citizen information while others found it essential that OSMRE also consider information provided by the State regulatory authority—the primary SMCRA enforcement authority under approved State programs. This inconsistency has manifested itself in the various internal directives that OSMRE has issued throughout the years, which have contained various interpretations of the regulations regarding, among other things, what information should be considered when determining if the OSMRE authorized representative has a “reason to believe.”

With the assistance and comments of OSMRE's State regulatory authority partners, citizens, and industry, OSMRE identified these inconsistent interpretations as significant enough to warrant a resolution through a clarifying rulemaking.

Comment:
A commenter expressed concern that the current TDN process was not working and gave an example of a TDN that seemingly took many years to resolve. The commenter further opined that the proposed rulemaking was not a step in the right direction and will result in “protracted delays” of enforcement to correct on-the-ground issues.

Response:
OSMRE agrees with the commenter that the existing process needed to be clarified to avoid unnecessary delays, and that is one of the reasons why OSMRE is issuing this final rule. OSMRE notes that this final rule will improve the TDN process by, among other things, increasing collaboration and coordination between OSMRE and the State regulatory authorities. OSMRE acknowledges that, historically, there have been challenges associated with the TDN process, and sometimes TDN issues were not resolved as quickly as OSMRE would have liked. However, while this final rule will not eliminate all future delays in TDN outcomes, just as the existing regulations did not, this final rule is intended to enhance the overall efficiency of the TDN process going forward in addressing violations. Because State regulatory program issues will be more appropriately addressed through the enhanced Part 733 process, rather than through the TDN process, OSMRE and the State regulatory authorities will be able to focus more quickly on site-specific violations that arise.

To be clear, neither the proposed rule nor the final rule substantively impacts the TDN process. Instead, in the final rule, OSMRE removes ambiguity by clarifying that the OSMRE authorized representative can review information received from any source, including the State regulatory authority, when deciding whether he or she has reason to believe a violation exists as contemplated by SMCRA. 30 U.S.C. 1271(a). When an OSMRE authorized representative has reason to believe a violation exists, the information about the alleged violation will continue to be transmitted to the State regulatory authority via a TDN. The distinction between the existing regulations and the final rule is that, under the final rule, the OSMRE authorized representative will consider all readily available information when formulating reason to believe. Most importantly, all readily available information includes information that the OSMRE authorized representative may receive from the State regulatory authority.

OSMRE also notes that some of the other revisions that OSMRE proposed and is finalizing today, namely the enhancement to 30 CFR part 733 related to State regulatory authority action plans to address State regulatory program issues, are a variation of an administrative process that has been contained in OSMRE's Directives REG-8 and REG-23 since as early as 1988. Given OSMRE's longstanding use of these action plans, the changes to these regulations also are not a material alteration of the administrative process that OSMRE has already used to interact with State regulatory authorities to enforce SMCRA. OSMRE is codifying these practices to avoid ambiguity about when these State regulatory authority corrective action plans are appropriate to use.

In summary, Merriam-Webster Dictionary defines clarify as, “to make understandable; to free from confusion.”
See Clarification, Merriam Webster Online Dictionary, available at merriam-webster.com/dictionary/clarification
(last accessed August 14, 2020). Because of the varying interpretations of what information may be considered when formulating reason to believe, not only by SMCRA stakeholders, but by OSMRE itself, a clarification is certainly warranted. Moreover, codifying the enhancements to early identification of corrective action to address State regulatory program issues will remove ambiguity as to when this process should be applied. OSMRE finds it essential to be transparent and make the regulations “understandable” and “free from confusion” so that the TDN process pursuant to 30 U.S.C. 1271(a) and the enhanced 30 CFR part 733 process pursuant to 30 U.S.C. 1271(b) work efficiently and effectively. This clarification is necessary to remove ambiguity.

D. This Final Rule Neither Inhibits a Citizen's Ability To Report Violations to OSMRE Nor Limits OSMRE's Ability To Exercise Oversight Enforcement

OSMRE received comments that evidence a misconception by many commenters that the changes OSMRE proposed, if finalized, would alter the obligations of 30 U.S.C. 1271. As discussed below, in response to specific comments, the statutory obligations under SMCRA are not altered by this rulemaking, and OSMRE will continue

to take action on citizen complaints and engage in oversight enforcement consistent with statutory mandates and the Federal regulations.

Comment:
Many commenters, including citizen group commenters, suggested that the proposed rule clarification would eliminate the ability of the public to report violations directly to OSMRE. According to several commenters, the proposed clarification would alter the process citizens would use to report alleged violations, make it prohibitively difficult, impair enforcement, and would lengthen the amount of time for a State regulatory authority to respond to a TDN from 10 days to unlimited, and make a TDN response from the State regulatory authority discretionary instead of mandatory. A commenter also opined that the clarification of the TDN process that OSMRE proposed explicitly contradicts the letter and intent of SMCRA. Similarly, another commenter suggested that, under the proposal, OSMRE would be able to simply ignore complaints against mining companies.

Response:
OSMRE disagrees with the premise of these comments. The rule, as proposed and finalized today, does not materially alter the manner in which OSMRE already enforces SMCRA. Specifically, OSMRE disagrees with the commenters who suggested that the proposed provisions and clarifications in 30 CFR parts 733 and 842 would impair, weaken, or eliminate the ability of the public to report violations directly to OSMRE. To the contrary, the public will be able to continue to report possible violations directly to OSMRE, and OSMRE will continue to take such complaints seriously and issue a TDN to the State regulatory authority when appropriate. OSMRE's consideration of all readily available information before issuing a TDN will make the process more efficient and effective by making correction of the violation the objective.

Indeed, the purpose of this final rule is to ensure that both alleged violations and potential State regulatory program issues are corrected promptly and effectively. After working closely with State regulatory authority partners for over 40 years, OSMRE has learned that, within the cooperative federalism framework established by SMCRA, effective enforcement requires close cooperation with primacy states. Furthermore, OSMRE notes that the United States Supreme Court has recognized that SMCRA has established a system of cooperative federalism involving an essential relationship between OSMRE in an oversight capacity and State regulatory authorities. In
Hodel
v.
Va. Surface Mining and Reclamation Ass'n,
452 U.S. 264, 289 (1981) (citing
In re Permanent Surface Min. Regulation Litigation,
617 F.2d 807, 808 (1980)), the Supreme Court explained that SMCRA “established a program of cooperative federalism that allows the States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs.” Given the unique nature of cooperative federalism embodied in SMCRA, coupled with the specific requirements within SMCRA to consider “any information available” when formulating reason to believe in the TDN context, it makes sense for OSMRE to consider available information from the State regulatory authority. 30 U.S.C. 1271(a)(1).

OSMRE's clarification in the final rule to provide explicitly that OSMRE will consider all “readily available information,” including any information that a State regulatory authority provides, promotes the goal of ensuring that the entities with primary jurisdiction over respective State programs supply OSMRE with information essential to its assessment of alleged violations. After OSMRE considers readily available information, including any information that a State regulatory authority provides, OSMRE will continue to make an independent assessment regarding whether it has reason to believe a possible violation exists. Further, the basic principle of SMCRA and the implementing regulations at 30 CFR 842.11 remains unchanged—OSMRE will continue to issue a TDN to a State regulatory authority when it concludes there is reason to believe a violation exists. As OSMRE explained in the proposed rule, and as embodied in this final rule, any information that OSMRE considers must be “readily” available to ensure that the process proceeds as quickly as possible and does not become open-ended.

The existing regulations at 30 CFR 842.12(a) already require that, if a citizen requests a Federal inspection, then the citizen is required to notify a State regulatory authority of a possible violation before or simultaneously with notification to OSMRE. In fact, OSMRE's proposal, and ultimately this final rule, is fundamentally no different from the existing rule because it retains language that requires citizens to notify the State regulatory authority prior to, or simultaneously with, reporting violations to OSMRE. The language in existing 30 CFR 842.12(a) requires citizens, as part of a request for Federal inspection, to do several things, including furnishing OSMRE with “a signed, written statement . . . giving the authorized representative reason to believe that a violation, condition or practice referred to in § 842.11(b)(1)(i) exists and that the State regulatory authority, if any, has been notified . . . .”

Moreover, contrary to some commenters' assertions that this proposed rule clarification would institute a new requirement for citizen complainants to contact the State regulatory authority before requesting a Federal inspection under section 842.12, the requirement for citizens to contact the State regulatory authority, before or simultaneously with a request to OSMRE for a Federal inspection, has been in 30 CFR 842.12(a) since August 16, 1982. 47 FR 35620. Because OSMRE continues to believe, as OSMRE has since 1982, that most alleged violations will be resolved by a State regulatory authority without intrusion by OSMRE (47 FR at 35628), OSMRE strongly encourages a citizen also to report a violation to the State regulatory authority first. However, neither the proposed rule nor the final rule mandates that a citizen report an alleged violation to the State regulatory authority before reporting it to OSMRE. The proposed rule clarification, which is adopted in this final rule, does not change or alter the requirement for citizen complainants to contact the State regulatory authority before or simultaneously with requesting a Federal inspection from OSMRE.

SMCRA confers exclusive jurisdiction upon a State regulatory authority after that State has achieved primacy.
See Bragg
v.
W. Va. Coal Ass'n,
248 F.3d 275, 288 (4th Cir. 2001) (explaining that once a State achieves primacy, it has “ `exclusive jurisdiction over the regulation of surface coal mining' within its borders”) (citing 30 U.S.C. 1253(a)). However, a State's exclusive jurisdiction is subject to the statutory exceptions outlined in SMCRA sections 521 and 523 and Title IV of SMCRA, 30 U.S.C. 1271, 1273, and 1231-1244. Given the prominent role that the States play in administering and enforcing SMCRA, OSMRE has found, in its experience, that including a State regulatory authority early in the process is advantageous to both the State regulatory authority and OSMRE because it reduces duplicative efforts to address potential violations. In OSMRE's experience, when a citizen first contacts the State regulatory authority, violations are often promptly and effectively resolved without OSMRE's direct involvement.

In OSMRE's experience implementing SMCRA, it has witnessed instances

when citizens filed complaints for the same or similar alleged violations on the same permit with both the State regulatory authority and OSMRE. Resolution of the violation was not efficient or effective because the State regulatory authority was simultaneously trying to use the same resources to respond to the citizen complaints and the various TDNs issued by OSMRE. For example, in one instance, OSMRE issued six TDNs on the same permit in less than six months. Instead of focusing directly on correcting the alleged violations at the site, both OSMRE and the State regulatory authority were subsumed by the paperwork exercise of issuing TDNs, responding to TDNs, and evaluating the State's responses to the TDNs; correcting the alleged violations became secondary to following the TDN process. Specifically, under one interpretation of the “reason to believe” standard in the existing regulations, the OSMRE authorized representative considered information in OSMRE's possession but ultimately issued separate TDNs, automatically assuming the allegations in the complaints to be true and without considering all readily available information—most importantly, the information that the State regulatory authority, with primary regulatory authority over the mine site, had available. Because the State regulatory authority knows its specific permits best, this is a perfect example of why considering any information the State regulatory authority provides is essential. In the anecdote above, had the State regulatory authority provided all “readily available information” to OSMRE up front, both OSMRE and the State regulatory authority could have better understood the alleged violations, cooperated effectively, and spent valuable time and resources addressing the alleged violations and not simply generating duplicative paperwork. Tellingly, in this example, the OSMRE field office ultimately found no violations of the approved program. The citizens filed a request for informal review with an OSMRE regional director, and, ultimately, the regional director affirmed the OSMRE field office's original decision. This duplication of effort unnecessarily diminished OSMRE and State regulatory authority resources that could have better been directed to resolving real issues, not merely preparing and exchanging paperwork. Thus, under this final rule, OSMRE must consider all readily available information, including any information the State regulatory may provide, when the authorized representative determines whether there is reason to believe that a violation exists.

As noted above, the removal of the language that essentially required OSMRE to automatically accept citizen complaints as true removes a potential ambiguity in the existing regulations and clarifies the information OSMRE can consider in forming a “reason to believe.” Finalizing the rule in this manner does not hinder the ability of citizens to report a violation directly to OSMRE. Because the regulations continue to require that the citizen notify the State regulatory authority before or simultaneously with requesting that OSMRE initiate a Federal inspection, a primacy State will have an opportunity to address an alleged violation before OSMRE, which is advantageous because the State regulatory authorities are more familiar with the operations in their States and can typically respond to alleged violations faster than OSMRE. This is consistent with primacy, as described by a U.S. Court of Appeals:

the Secretary is initially to decide whether the proposed state program is capable of carrying out the provisions of the Act but is not directly involved in local decision making after the program has been approved.

In re Permanent Surface Min. Regulation Litigation,
653 F.2d 514, 518 (D.C. Cir. 1981). The court further stated that:

[o]nce a state program has been approved, the state regulatory agency plays the major role, with its greater manpower and familiarity with local conditions. It exercises front-line supervision, and the Secretary will not intervene unless its discretion is abused.

Id.
at 523. Although a State plays the major role in enforcing its State program, the court did note that: “Ultimate responsibility for guaranteeing effective state enforcement of uniform nationwide minimum standards lies with the Secretary.”
Id.
States are expected to fully implement their programs, including all applicable enforcement provisions. OSMRE will exercise its oversight responsibility, in part, through this final rule and will continue to issue TDNs when it has reason to believe a possible violation exists; the relevant provisions of this final rule clarify the process that OSMRE will use to arrive at a “reason to believe.” Further, if a State does not effectively enforce its State program, Congress authorized OSMRE to address such inadequacies in the State's implementation through SMCRA section 521(b). 30 U.S.C. 1271(b).

Some commenters asserted that the time frames for responding to TDNs have been extended or made indefinite by the proposed rule. While it is true that there is no time frame set forth in the final rule for OSMRE's authorized representative to make a determination about whether they have reason to believe a violation exists, it is also true that there has never been a stringent time frame imposed. Further, as OSMRE explained in the proposed rule, OSMRE proposed, and is finalizing, inclusion of the word “readily” to the revised regulations at 30 CFR 842.11(b)(1)(i) to modify the phrase “available information” to ensure that the process proceeds as quickly as possible and does not become open-ended. 85 FR at 28907;
see also
OSMRE's response to a request to specifically define “readily available.” Once OSMRE's authorized representative has determined that they have reason to believe that a possible violation exists, the State regulatory authority will still have only ten days to respond to the TDN.
See
30 CFR 842.11(b)(1)(ii)(B)(
1
). Thus, this rule ensures that reported alleged violations will be responded to in a reasonable amount of time.

Finally, this rule neither makes a State regulatory authority's response to a TDN discretionary nor impinges on OSMRE's ability to perform oversight of a State regulatory program. OSMRE is not changing the nondiscretionary requirement that a State regulatory authority must respond to a TDN with good cause for inaction or by taking appropriate action within ten days. 30 CFR 842.11(b)(1)(ii)(B)(
1
). OSMRE is, however, revising its regulations to ensure a more uniform and efficient process when OSMRE receives a citizen complaint. The revised regulation clarifies what the OSMRE authorized representative should consider when they receive a citizen complaint, which eliminates the possibility that different OSMRE offices will apply different standards when determining whether to issue a TDN. This revised process also ensures that the OSMRE authorized representative who receives a citizen complaint is able to apply their independent, professional judgment to determine whether they have reason to believe a possible violation exists based on all readily available information before them. Once an OSMRE authorized representative determines that they have “reason to believe,” they must issue a TDN to the State regulatory authority.
See
30 CFR 842.11(b)(1). Therefore, OSMRE's oversight of alleged violations is not materially altered.

Comment:
Very similar to the comment addressed above, a citizens' group commenter expressed the opinion that the rule gives the coal industry a free pass to break environmental laws

and provides no meaningful way for citizens to bring potential violations to the attention of OSMRE. As evidence for this claim, the commenter references a statement by OSMRE in regard to the spirit of cooperative federalism, at 85 FR at 28905 in the preamble of the proposed rule, “to alleviate unnecessary regulatory burden” consistent with E.O. 13777.

Response:
This rulemaking does not, and could not, alter OSMRE's statutory responsibilities to enforce SMCRA. Moreover, this rulemaking does not impair, weaken, or eliminate OSMRE's ability to enforce SMCRA and the implementing regulations or the public's ability to report alleged violations directly to OSMRE.
See also
OSMRE's further explanations in this section.

To the extent that OSMRE referred to the spirit of cooperative federalism in the preamble, it was a recognition of the fundamental importance of cooperative federalism to SMCRA's administrative and enforcement framework.
See, e.g., Bragg,
248 F.3d at 288 (SMCRA “accomplishes [its] purposes through [ ] `cooperative federalism,' in which responsibility for the regulation of surface coal mining in the United States is shared between the U.S. Secretary of the Interior and State regulatory authorities.”). It was in this spirit that we coordinated with our State regulatory partners as we conceptualized this rulemaking. This spirit also informed how we chose to clarify any potential ambiguities in the existing regulations and develop a more efficient process for addressing alleged violations of SMCRA within the limits of our statutory authority. Cooperative federalism does not mean that OSMRE will no longer perform its statutory duty to oversee a State regulatory authority's implementation, administration, enforcement, and maintenance of its State program. Instead, it means that, given the prominent role that the States play in administering and enforcing SMCRA, including State regulatory authorities early in the process is advantageous to both the State regulatory authority and OSMRE because it reduces duplicative efforts to address potential violations. Also, as stated above, in OSMRE's experience, when a citizen first contacts the State regulatory authority, violations are often promptly and effectively resolved without OSMRE's direct involvement.

Likewise, the fact that this action is consistent with E.O. 13777 and helps to alleviate unnecessary regulatory burdens does not mean that OSMRE will fail to perform its statutory responsibilities set forth in SMCRA—including its oversight responsibilities. It simply means that by removing a potential ambiguity from the Federal regulations and creating a more uniform process for OSMRE authorized representatives to follow when determining whether they have “reason to believe,” OSMRE is reducing the likelihood of duplicative processes between OSMRE and the State regulatory authorities. It does not mean that permittees will be held to a lesser standard for abating SMCRA violations when they occur.

Comment:
In the same vein, a citizen commenter states that United States citizens and taxpayers have a right to seek accountability for violations of mining laws that protect citizens and the environment. As a rationale for not finalizing the proposed rule, the commenter also cites to a State constitution and asserts that there is a provision that is aimed at protecting citizens' rights to a “clean and healthful environment.”

Response:
Nothing in this final rule diminishes a citizen's ability to bring potential violations of SMCRA or State counterparts to SMCRA to OSMRE's attention. Further, when OSMRE has reason to believe that a violation exists, OSMRE will continue to send a TDN to the relevant State regulatory authority and take appropriate enforcement action. This final rule is fully authorized by SMCRA. In order for a State to be granted primacy of an approved SMCRA State program, the State must follow the procedures of section 503 of SMCRA, 30 U.S.C. 1253; however, “[n]o State law or regulation . . . shall be superseded by any provision of [SMCRA] or any regulation issued pursuant thereto, except insofar as such State law or regulation is inconsistent with the provisions of [SMCRA],” and State laws and regulations may be more stringent than SMCRA and its implementing regulations.
See
30 U.S.C. 1255. Therefore, nothing in SMCRA prevents any State from adopting laws and regulations related to surface coal mining operations that are more stringent than SMCRA or its implementing regulations, including this final rule. Moreover, this final rule is consistent with SMCRA's purpose of protecting society and the environment from the adverse effect of surface coal mining operations, which is similar to the State constitutional provision cited by the commenter.

Comment:
A citizen commenter expressed concern that OSMRE's proposed rule, if finalized, would reduce the efficacy of OSMRE's oversight of approved State programs. Similarly, another commenter opined that the proposed rule, if finalized, would reduce or hinder OSMRE's ability to conduct oversight of State regulatory programs.

Response:
OSMRE disagrees with these commenters' characterization of the impacts of the regulatory clarification that OSMRE proposed and is finalizing today. As explained in response to other comments within this section, OSMRE drafted the regulatory revisions to improve the efficiency and effectiveness of OSMRE's oversight by focusing State and OSMRE resources on addressing alleged violations and not on simply generating paperwork. Nothing in the final rule prevents OSMRE from exercising the full panoply of oversight actions that Congress authorized in SMCRA. To the contrary, OSMRE's regulatory revisions seek to build on the oversight responsibilities at 30 U.S.C. 1254(b) and 1271(b), which authorize OSMRE to provide Federal enforcement when a State is not enforcing all or part of its approved program or to take over all or part of a State regulatory program if the State regulatory authority fails to enforce the approved State program. Specifically, OSMRE is adding the concept of action plans to 30 CFR 733.12, which enhances the tools available to OSMRE to ensure the approved State program continues to be effectively implemented, maintained, enforced, and administered. This addition will codify an existing OSMRE practice and result in more accurate and concise solutions to State regulatory program issues.

Comment:
One citizen commenter expressed concerns that SMCRA does not intend the citizen complaint process to be so complicated that it would impair citizens' access to filing complaints or inhibit citizens from filing complaints. This citizen was particularly concerned that the clarification as proposed would make the filing of a citizen complaint more difficult for those who are not experts in SMCRA and SMCRA procedures. For example, the citizen alleges that, as proposed, the clarification would be similar to a legal filing instead of an informational filing as SMCRA intended. Similarly, another citizen commenter expressed concern that the proposed requirement to specify the basis for the person's assertion that the State regulatory authority has not taken action with respect to the possible violation is too burdensome upon the public and will reduce the number of Federal inspections.

Response:
OSMRE disagrees with the commenters' views; the clarification adopted in this final rule has very little practical effect on how citizens may file

complaints and places no additional burden on the citizen complaint process from a complainant's perspective. The majority of the proposal finalized today only affects OSMRE's process after receipt of a citizen complaint. For a citizen, the finalized regulation at 30 CFR 842.12(a) reconfirms the requirement in existing 30 CFR 842.12(a) that, when requesting a Federal inspection, the citizen must include a statement that the citizen has informed the State regulatory authority of the existence of the possible violation, condition, or practice. As proposed, the final rule will also require the citizen to provide the basis for the citizen's assertion that the State regulatory authority has not taken action with respect to the possible violation. OSMRE finds this necessary because any information the citizen can provide to OSMRE about the State regulatory authority's response would be very helpful in OSMRE's efforts to efficiently resolve the alleged violation. OSMRE is not suggesting that a citizen complainant enter a mine to verify whether or not the State regulatory authority has acted on the possible violation. To the contrary, OSMRE asks citizens not to do so and is merely asking the requester of the Federal inspection to provide any information he or she may have about the State regulatory authority's action or inaction. By no means is this requirement aimed at reducing requests for Federal inspections; it is intended to ensure that OSMRE has all readily available information.

Furthermore, OSMRE does not expect a citizen to provide the level of information that would be required for a legal filing. For instance, just as in the existing regulations, under the final regulation at 30 CFR 842.12(a), OSMRE specifies that an oral report is sufficient for submitting a citizen complaint that requests a Federal inspection as long as it is followed up by a written statement. Of course, the more detail that a citizen can provide to OSMRE, the more information the authorized representative will have when he or she determines whether there is reason to believe there is a violation, which could expedite the correction of any violation that the citizen complaint brings to OSMRE's attention. However, OSMRE recognizes that obtaining significant information is frequently beyond most citizens' ability, and the final rule does not require any more information than the citizen has available, such as information explaining why the citizen believes there is a violation, that the State regulatory authority was notified, and, possibly, the State regulatory authority's response.

Comment:
One commenter interpreted OSMRE's preamble statement at 85 FR at 28910 that “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” to mean that OSMRE's proposed rule would eliminate the ability of a citizen to seek Federal relief.

Response:
As explained in the response immediately above, citizens can still avail themselves of the citizen complaint process set forth in 30 U.S.C. 1267(h)(1). This rule does not materially alter the ability of a citizen to contact OSMRE about an alleged violation. OSMRE included the language quoted by the commenter in the preamble of the proposed rule because 30 U.S.C. 1271(a)(1) requires OSMRE's authorized representative to use their discretion to make an independent, professional judgment based on all readily available information, including information provided by a citizen, to determine if they have reason to believe a violation exists before issuing a TDN. In other words, OSMRE has the discretion to determine whether it has reason to believe a violation exists.
See, e.g., Castle Mountain Coal.
v.
OSMRE,
No. 3:15-CV-00043, 2016 WL 3688424, at *6 (D. Alaska July 7, 2016) (30 U.S.C. 1271(a)(1) “does not assign any non-discretionary duties to the agency unless and until the Secretary has found `reason to believe' that a violation exists.”). Once OSMRE determines it has reason to believe a violation exists, the final rule still recognizes that OSMRE has a mandatory duty to issue a TDN to a State regulatory authority.

This comment, in fact, highlights one of the reasons that OSMRE is revising its regulations—to clarify a potential ambiguity in its existing regulations. This commenter appears to interpret OSMRE's existing ambiguous regulations as requiring OSMRE to automatically issue a TDN every time it receives a citizen complaint. To the extent that this is the case, the commenter is not alone. The ambiguity in the existing regulations has, in some instances, created the impression that the existing regulation at 30 CFR 842.12(a) means that OSMRE will be merely serving as a conduit for a citizen complaint,
i.e.,
automatically issuing a TDN anytime it receives a citizen complaint.
See, e.g., W. Va. Highlands Conservancy,
152 IBLA 158, 187 (Apr. 25, 2000) (When examining the existing regulations, the IBLA stated: “[W]e agree with appellants that
the regulations
do not envision `fact-finding' to determine if a violation exists before deciding whether a `possible' violation may exist. Rather, the preamble language to the 1982 rule makes clear that the possibility of a violation triggers
the regulatory requirements
to notify the State.” (emphasis added)). To the extent that our existing regulations were interpreted, by the Interior Board of Land Appeals and others, to mandate a TDN on receipt of every citizen complaint, that interpretation is in clear contrast with the language of 30 U.S.C. 1271(a)(1), which requires an OSMRE authorized representative to use his or her discretion to determine whether there is “reason to believe” before issuing a TDN. Therefore, the revised regulations seek to eliminate any possible ambiguity—it is now clear, consistent with the plain language of 30 U.S.C. 1271(a)(1), that the OSMRE authorized representative has discretion to determine whether to issue a TDN based on whether they have “reason to believe” based on all readily available information. Any other interpretation would change OSMRE's role from an independent, professional expert on mining to that of a clerical worker without the discretion to discern facts underlying a complaint and that is not contemplated by SMCRA.

Comment:
A commenter, providing input on behalf of a citizens' group, expressed concern that the proposed changes to OSMRE's regulations would undermine OSMRE's ability to perform its oversight role and prevent public participation in the process. The commenter stressed the importance of OSMRE's ability to hold mine operators accountable in addition to what the States do to protect the public and the environment.

Response:
OSMRE appreciates the commenter's recognition of the important role that OSMRE plays in ensuring public safety and environmental protection. However, in a primacy State, OSMRE is secondary to the State regulatory authority. Section 503(a) of SMCRA specifies that in a primacy State, the State has “exclusive jurisdiction over the regulation of surface coal mining and reclamation operations, except as provided in sections 521 and 523 and title IV” of SMCRA. 30 U.S.C. 1253(a). Thus, in a primacy State, OSMRE's role is limited to those functions specified in sections 521 and 523 and Title IV (30 U.S.C. 1271, 1273, and 1231-1244). Most relevant to this rulemaking, section 521 sets forth the circumstances in which OSMRE may exercise its oversight enforcement authority in a primacy

State. This authority operates to better assure that the goals of SMCRA are met.

Although OSMRE's enforcement authority in a primacy State is limited to that authorized by 30 U.S.C. 1271, OSMRE disagrees that the rule, as proposed, would further limit OSMRE's ability to enforce SMCRA and to protect the public and the environment. OSMRE also disagrees that the proposed rule would, in any way, prevent public participation. Public participation is an important tenet of SMCRA. As the U.S. Court of Appeals for the Fourth Circuit stated:

SMCRA is designed in part to “assure that appropriate procedures are provided for the public participation in the development, revision, and enforcement of regulations, standards, reclamation plans, or programs established by the Secretary or any State under [the Act].” [30 U.S.C.] 1202(i). One of the “appropriate procedures” to assure public participation in enforcing SMCRA standards allows any adversely affected person to notify OSM[RE] of the existence of a SMCRA violation at any surface mining operation.
Id.
§ 1267(h). The notification is commonly known as a “citizen complaint.”

W. Va. Highlands Conservancy, Inc.
v.
Norton,
343 F.3d 239, 242 (4th Cir. 2003).

The final rule does not change the public's ability to submit a citizen complaint. A citizen may still submit a complaint to OSMRE just as he or she has been able to do for more than 40 years.

The final rule clarifies OSMRE's process after receipt of a citizen complaint. Specifically, it provides that OSMRE will verify the requirement that has been in our regulations since 1982 that, in a primacy State, a citizen, when requesting a Federal inspection, must notify the State regulatory authority of an alleged violation before or simultaneously with notification to OSMRE. 47 FR at 35620. Also, as described in response to comments about OSMRE's clarification that when formulating a decision about whether there is “reason to believe,” “any information readily available” includes information received from the State regulatory authority, OSMRE is also removing the potential ambiguity in the existing regulations about the information that OSMRE's authorized representative will review before determining whether he or she has reason to believe a violation exists. These clarifications to OSMRE's process after receiving a citizen complaint will allow both OSMRE and the State regulatory authority to dedicate resources toward addressing any violation alleged by a citizen instead of preparing superfluous paperwork for each other. The clarification also enhances cooperation and minimizes duplication of administration with the State regulatory authority as required by 30 U.S.C. 1211(c)(12).

OSMRE will continue to follow the requirements of 30 U.S.C. 1271(a) and the implementing regulations found at 30 CFR parts 842 and 843 and issue a TDN when appropriate. Therefore, the final rule does not eliminate the existing TDN process or lessen OSMRE's overall oversight authority, including OSMRE's ability to enforce violations in primacy States, if that is necessary.

Comment:
One citizen commenter emphasized that mining operations must be held accountable for daily mining practices and reclamation to ensure protection of the environment. The commenter did not support the proposed regulation in any way without explicitly stating a rationale or support for this position. Additionally, the commenter states that costs for reclamation should be secured initially and “no closure should happen before all work and costs are absorbed by the company.” The commenter also asserts that a mining company “CEO should be paid what is left if there is anything.”

Response:
Although certain aspects of the comment are not entirely clear or do not relate to the proposed rule, OSMRE agrees that mining operations must be held accountable for their mining practices to ensure that mining and reclamation are done in an environmentally protective manner. One of the stated purposes of SMCRA is to “assure that surface coal mining operations are so conducted as to protect the environment,” 30 U.S.C. 1202(d), and OSMRE always has a duty to further the purposes of SMCRA. Moreover, as stated elsewhere, this final rule will enhance OSMRE's and the State regulatory authorities' ability to identify and address alleged violations of State regulatory programs so that any violations can be corrected as soon as possible. Also, as we have stated in response to other comments, should a citizen have information related to an alleged violation at a specific mining operation, he or she is entitled to file a citizen complaint, and OSMRE will address any citizen complaints it receives in accordance with SMCRA and the relevant regulations to ensure that any violations are timely corrected. In addition, information in a citizen complaint may result in OSMRE identifying a State regulatory program issue, which OSMRE will address under § 733.12 of this final rule. A citizen may also request that OSMRE evaluate a State program as outlined in existing 30 CFR 733.12(a), that has been redesignated as 30 CFR 733.13(a) under this final rule. With regard to reclamation requirements and the cost of reclamation, OSMRE notes that those issues were not a part of the proposed rule, and this final rule does not alter any of the existing reclamation regulations. Importantly, SMCRA section 509, 30 U.S.C. 1259, and the existing regulations at 30 CFR part 800, have bonding requirements to assure, among other things, completion of reclamation plans.

Comment:
One commenter asserted that State agency personnel have been physically relocated farther from mine sites and have become less effective. The commenter also notes that agency personnel have recently changed, which has resulted in a loss of institutional memory.

Response:
OSMRE recognizes that the loss of staff and their institutional knowledge can be a problem for both OSMRE and State regulatory authorities. Similarly, budget savings, which may have been the reason that personnel from State regulatory authorities were relocated, is a part of government. Both reasons, however, support OSMRE revising its regulations, as OSMRE is doing here, to make them more efficient and effective, and to avoid duplication of efforts between a State regulatory authority and OSMRE. This final rule enhances OSMRE's ability to engage in appropriate oversight of State regulatory programs.

Comment:
Several commenters offered examples of alleged OSMRE oversight enforcement failures.

Response:
To the extent the commenters believe there is a failure of any State regulatory authority to implement, administer, enforce, or maintain an approved program, OSMRE directs the citizens to the provisions of existing 30 CFR 733.12(a) that are being redesignated as 30 CFR 733.13(a) pursuant to this final rule. Moreover, as to a concern expressed by one commenter that the proposed rule would impact an individual's ability to “protest projects going through their own or state/fed[eral] property,” OSMRE's proposed rule clarification, as adopted in this final rule, will not change a citizen's ability to “protest” or comment on proposed mining projects or permitting actions of any individual mine located on private, State, or Federal property. OSMRE did not propose to revise, and is not revising, 30 CFR 773.6, which details how citizens can participate in permit processing. Thus, the opportunities for the public to comment on proposed mining projects or permitting actions provided by SMCRA and further explained in 30

CFR 773.6 remain unchanged, including the time to file objections to individual mine permits on all property, regardless of ownership. In conclusion, OSMRE will continue to take its oversight responsibilities very seriously, in accordance with SMCRA and the implementing regulations.

E. OSMRE's Authorized Representative Will Continue To Formulate “Reason To Believe” As Mandated by SMCRA; This Includes Using Best Professional Judgment

Comment:
One citizens' group representing many national citizen organizations and “thousands of individuals” across the country questioned OSMRE's assertion that the information used to formulate “reason to believe” has created ambiguity within the TDN process, in particular related to on-the-ground violations. To support this contention, the citizens' group states that “a search of all [Interior Board of Land Appeals (IBLA or the Board)] decisions fails to disclose even
one
instance where the Board found the long-established OSMRE Ten Day Notice procedure to be problematic.”

Response:
As explained below, OSMRE disagrees with the commenter's opinion that OSMRE is creating an ambiguity where it does not exist. First, this rule is being promulgated to improve OSMRE's coordination with State regulatory authorities to minimize duplication of inspections, enforcement, and administration of SMCRA. Specifically, this rule provides a streamlined, more uniform, and efficient process for OSMRE to follow when it receives a citizen complaint. Because the IBLA typically does not get involved until after OSMRE makes a decision on whether to issue a TDN, conduct a Federal inspection, or issue a notice of violation or cessation order, it is unsurprising that the IBLA has not identified OSMRE's internal process leading to the issuance of a TDN as a problem.

Second, some of the IBLA cases that the commenter cites illustrate how the existing regulations may result in a disparate application of OSMRE's various enforcement tools. For example, the commenter highlights a decision in which the IBLA found OSMRE's decision to defer violations for programmatic review under the 30 CFR part 733 process was not in accordance with the existing regulations.
W. Va. Highlands Conservancy, et al.,
152 IBLA at 193. While it is true that the commenter accurately summarized the holding of this decision, it is also true that the facts presented in that case demonstrate an OSMRE internal inconsistency when applying the existing Federal regulations. Specifically, the case focused on when it was appropriate for OSMRE to use the different enforcement tools set forth in 30 U.S.C. 1271(a) and (b) in response to complex citizen complaints.
See, e.g., id.
at 187-188 (The Board rejected OSMRE's attempt to justify its failure to issue TDNs on specific sites as required by 30 U.S.C. 1271(a) based upon its use of the programmatic review process in 30 U.S.C. 1271(b)).

The rule OSMRE is finalizing today helps to clarify to agency personnel and the public when each of the enforcement tools in 30 U.S.C. 1271(a) and (b) will be used and what information OSMRE will rely on when it makes a determination that it has reason to believe a violation exists. For instance, if a similar fact pattern to the one in
West Virginia Highlands Conservancy
arose under the regulations finalized today, OSMRE's authorized representative would make a determination whether they have reason to believe a violation exists on a specific site based on all readily available information available to them. If they have “reason to believe,” they would then issue a TDN. However, the revisions made to 30 CFR 842.11(b)(1)(ii)(B)(
3
) would also allow the State regulatory authority to respond that it has taken appropriate action because it, along with OSMRE, is immediately implementing steps to correct a programmatic issue using the action plan process set forth in revised 30 CFR 733.12. The revised regulations also clarify that OSMRE may still take enforcement action under 30 U.S.C. 1271(a) if the State regulatory program issue “results in or may imminently result in a violation of the approved State program.” Therefore, the revisions to the Federal regulations finalized today should help reduce the ambiguity that lead to the
West Virginia Highlands Conservancy
case.

Third, despite the cases cited by the commenters, there is no judicial or administrative decision defining “reason to believe” as used in 30 U.S.C. 1271(a). One case,
Castle Mountain Coalition
v.
OSMRE,
explicitly recognizes that OSMRE does not have a mandatory duty to act under 30 U.S.C. 1271(a) until it has determined there is reason to believe that a violation exists. 2016 WL 3688424, at *6. In another case, a court reviewed the “reason to believe” standard in 30 U.S.C. 1271(b) and concluded that a determination as to “whether the Secretary of the Interior “has `reason to believe' a violation has occurred is a matter committed to her discretion by law.”
Dacotah Chapter of Sierra Club
v.
Jewell,
No. 12-065, 2013 WL 12109410, at *8 (D.N.D. Oct. 22, 2013). The rulemaking that OSMRE is finalizing today ensures that there is no debate that the OSMRE authorized representative is allowed to use their independent, professional discretion, based on all readily available information, to determine whether they have “reason to believe.” This clarification is needed because many of the comments received in response to the proposed rulemaking show that the public misunderstands the discretion committed to OSMRE's authorized representative by 30 U.S.C. 1271(a).

Comment:
Many commenters, including industry groups that represent operations that mine coal through surface and underground methods, submitted questions and comments about the requisite information necessary to establish reason to believe a violation exists under the revisions to 30 CFR 842.11 and 842.12 adopted in this final rule. Within this general category of comments, one commenter requested that OSMRE include a provision in the final rule that the OSMRE authorized representative should not base his or her decision to issue a TDN on “bare allegations.” This same commenter also requested that OSMRE include language in the final rule that clarifies that the OSMRE authorized representative will use and consider information obtained from any source, including the permittee, to establish reason to believe a violation exists.

Response:
In accordance with 30 U.S.C. 1271(a), OSMRE can formulate a decision about whether reason to believe that a violation exists “on the basis of
any information available.
. . , including receipt of information from
any person.
. . .” Emphasis added. Consistent with this statutory provision, §§ 842.11(b)(1)(i) and 842.12(a) of this final rule specify that OSMRE's authorized representative will consider any readily available information when he or she is deciding whether there is reason to believe a violation exists, including information from a citizen complainant and any information that the relevant State regulatory authority submits to the authorized representative. Any readily available information includes information from any person, including the permittee, and is not limited to information that OSMRE receives from a citizen or State regulatory authority. In addition, as OSMRE stated in the preamble to the proposed rule, other examples of sources of readily available information include permit files or public records. 85 FR at 28911. However, based on this

commenter's suggestion for clarification and other commenters' similar suggestions, in the rule OSMRE is finalizing, OSMRE includes the phrase “from any source” within 30 CFR 842.11(b)(1)(i) and (b)(2). This addition will further remove any ambiguity relevant to information an OSMRE authorized representative considers when formulating reason to believe and reinforces internal consistency in the Federal regulations.

Moreover, as OSMRE explained in the proposed rule preamble, OSMRE considers “any information that is accessible without unreasonable delay” to be “readily available information.” 85 FR at 28907. In the proposed rule, OSMRE chose the phrase “readily available” purposely “so that the process will proceed as quickly as possible and will not become open-ended.”
Id.
OSMRE agrees with the commenter that the authorized representative should not base the decision to issue a TDN on “bare allegations.” SMCRA establishes a firm foundation for an authorized representative to exercise professional judgment when formulating reason to believe a violation exists. Thus, under this final rule, OSMRE's authorized representative, while using best professional judgment, will make the “reason to believe” determination based upon readily available information, rather than bare allegations.

Comment:
One commenter suggested that an authorized representative should not have discretion to use his or her best professional judgment when evaluating alleged violations. The commenter also suggested that, in lieu of the authorized representative, the most appropriate person to determine that “reason to believe” a violation exists should be a qualified OSMRE career staff employee, who should have a degree in engineering, geology, environmental science, or a related field.

Response:
This comment appears to focus on OSMRE's authorized representative's formulating “reason to believe.” OSMRE agrees with the commenter that an OSMRE authorized representative should be a qualified individual with the appropriate educational background and specialized experience required to be certified by the Director of OSMRE to serve as an authorized representative. However, OSMRE disagrees with the commenter's suggestion that an authorized representative should not have discretion to use his or her best professional judgment when evaluating alleged violations. The use of best professional judgment is essential for an authorized representative.

When enacting SMCRA, Congress mandated that OSMRE “shall have a Director who shall be appointed by the President. . . .” 30 U.S.C. 1211(b). Congress required the Director to, among other things, “make those investigations and inspections necessary to [e]nsure compliance with this Act[.]” 30 U.S.C. 1211(c)(1). Integral to the Director carrying out these obligations is hiring appropriate, qualified employees within OSMRE. To this point, Congress mandated that “[e]mployees of the Office shall be recruited on the basis of their professional competence and capacity to administer the provisions of the Act.” 30 U.S.C. 1211(b). Ultimately, it is the OSMRE Director who must ensure that employees of OSMRE—including a designated authorized representative—have the “professional competence and capacity” to undertake the “investigations and inspections necessary” to ensure compliance with SMCRA.
See
30 U.S.C. 1211(b) and (c). Only an OSMRE employee who is certified as an authorized representative with inspection authority may issue a TDN pursuant to section 521(a)(1) of SMCRA. 30 U.S.C. 1271(a)(1). An employee who is certified as an authorized representative receives a badge and identification credentials that he or she carries when on duty. Outside the context of this rulemaking, only these same authorized representatives may undertake inspection and enforcement actions under section 517 of SMCRA. 30 U.S.C. 1267. OSMRE promulgated regulations specific to these tasks at 30 CFR parts 842 and 843. Additionally, as set forth in OSMRE's Directive INE-18, “Authorized Representatives”, OSMRE has established a rigorous process to ensure that the best qualified candidates are selected for positions as authorized representatives and that these individuals have the “professional competence and capacity” to appropriately issue TDNs based on their best professional judgment, consistent with 30 U.S.C. 1211(b).
See https://www.osmre.gov/LRG/docs/directive958.pdf
(last accessed Aug. 23, 2020). Based on established OSMRE practice and procedure, the Director (or approved designee) may certify an OSMRE employee as an authorized representative only upon satisfactory completion of significant training and certification requirements. Furthermore, the Director (or approved designee) may suspend or withdraw the certification of any authorized representative. Each authorized representative with authority to issue TDNs is required to hold a four-year college degree with major study in the areas of hydrology, agronomy, geology, range conservation, forestry, ecology, civil engineering, mining engineering, natural science, biological sciences, natural resources, environmental planning, or earth sciences as required by the U.S. Office of Personnel Management's Federal Position Classification and Qualifications.
See https://www.opm.gov/policy-data-oversight/classification-qualifications/general-schedule-qualification-standards/1800/surface-mining-reclamation-specialist-1801/
(last accessed Aug. 23, 2020). Authorized representatives with authority to issue TDNs are highly educated, highly trained individuals who must also undergo a progressive on-the-job training and mentoring plan before becoming an authorized representative. The OSMRE Director (or designee) approves the training and mentoring plan to ensure competency and capacity to administer SMCRA. This information is documented in the authorized representative's personnel file.

In sum, OSMRE authorized representatives are highly educated, trained, and qualified individuals who OSMRE hires precisely because of their ability to exercise professional judgment. Specific to this final rule, these individuals are uniquely qualified, based upon their professional judgment, to determine whether there is reason to believe a violation exists, issue TDNs when necessary, and ensure that violations of a State regulatory program are corrected in a timely manner.

Comment:
Several citizen commenters oppose the clarification of the TDN process, alleging that the proposed rule would no longer treat citizen complaints as true. These commenters state that the proposed rule would result in citizen complaints not being formally investigated within 10 days of the complaint being filed. The commenters state that the proposed rule would result in OSMRE dismissing public concerns and ignoring mining violations. Many commenters also suggested that the proposed rule was not simply a clarification of existing rules.

Response:
OSMRE disagrees with these characterizations of the proposed rule and notes that, under this final rule, OSMRE will continue to take citizen complaints seriously, in recognition of the important role citizens play in the SMCRA enforcement process. When OSMRE issues a TDN to a State regulatory authority, the TDN may be based upon information that OSMRE initially received in a citizen complaint. However, to fully address this comment, OSMRE will explain the existing TDN

process as authorized by section 521(a)(1) of SMCRA, 30 U.S.C. 1271(a), and implemented in OSMRE's existing regulations at 30 CFR 842.11.

Section 521(a)(1) provides that the “reason to believe” determination in the TDN context is based upon “any information available to [the Secretary], including receipt of information from any person.” Likewise, under the existing regulations at section 842.11(b)(1)(i), as they pertain to the TDN process, OSMRE's authorized representative's determination of whether he or she has “reason to believe” is based upon “information available.” Moreover, under existing § 842.11(b)(2), upon receipt of a citizen complaint, OSMRE's authorized representative transmits the citizen complaint to the State regulatory authority as a TDN
after
the authorized representative has formulated reason to believe that a violation, condition or practice exists.” The OSMRE authorized representative's formulation of reason to believe includes analysis based on SMCRA and the Federal regulations, surface coal mining expertise, and any information readily available. OSMRE explained in the proposed rule that some might have interpreted existing § 842.11(b)(2) to mean that all OSMRE has to do is determine whether the facts alleged in a citizen complaint would constitute a violation before issuing a TDN. However, the existing regulations are not designed to have OSMRE merely serve as a conduit to the State regulatory authority. OSMRE's authorized representative must analyze the information. In the proposed rule, OSMRE explained that when the authorized representative performs the analysis necessary to formulate reason to believe, he or she should consider all readily available information—including information ascertained from the State regulatory authority and any additional information that citizens provide. While it is accurate that OSMRE proposed to remove the phrase “if true” from existing § 842.11(b)(2), and has adopted that change in this final rule, the proposed rule was not intended to weaken the TDN rules with respect to an OSMRE authorized representative's analysis of whether he or she has “reason to believe” that a violation exists. In fact, in the proposed rule, OSMRE proposed that the authorized representative would consider information that is vital to understanding and examining an alleged violation. OSMRE's authorized representative must weigh the evidence in front of him or her, especially if some of that evidence is contradictory—this is part of the OSMRE authorized representative's exercise of professional judgment based upon readily available information in determining whether he or she has reason to believe a violation exists.

In this final rule, the removal of the phrase “if true” from 30 CFR 842.11(b)(2) coupled with the insertion of the phrase “on the basis of any information readily available” found at proposed 30 CFR 842.11(b)(1)(i) removes ambiguity in the existing TDN process, increases efficiency, and allows OSMRE's authorized representative to more fully exercise his or her professional judgment. This approach is consistent with SMCRA and even OSMRE's existing regulations at § 842.11(b)(1)(i). In this regard, the relevant provisions that OSMRE is adopting in this final rule are a clarification of the existing regulations. However, this clarification is necessary to remove any confusion that was created by the “if true” language.

Moreover, Congress created OSMRE as the expert agency that administers SMCRA, 30 U.S.C. 1211(a) and (c), and requires that “[e]mployees of [OSMRE] shall be recruited on the basis of their professional competence and capacity to administer the provisions of this Act” (30 U.S.C. 1211(b)). Thus, it stands to reason that OSMRE, through its authorized representative, must apply expertise and professional judgment in determining whether “reason to believe” exists. Interpreting SMCRA in a manner that relegates the OSMRE authorized representative to a position of a mere conduit of a citizen complaint to the State regulatory authority is not supported by SMCRA or its implementing regulations. Therefore, the commenters' assumption that a citizen complaint must be treated “as true” ignores OSMRE's expertise in administering SMCRA and does not comport with SMCRA or even OSMRE's existing TDN regulations and practice. Nothing in SMCRA requires OSMRE to accept alleged facts as true in a vacuum; the totality of readily available information must be considered in order to prevent issuing an unwarranted TDN to a State regulatory authority, which would needlessly waste OSMRE's and the State regulatory authority's time and resources.

For these precise reasons, the proposed clarification, which OSMRE is adopting in this final rule, removes any unnecessary conflict between OSMRE and the State regulatory authority. OSMRE's experience has shown that when OSMRE works cooperatively with State regulatory authorities, the TDN process works best, and problems are resolved more efficiently, furthering the purposes of SMCRA.
See generally,
30 U.S.C. 1202(a) and (d). For example, under the existing TDN process, OSMRE does not always receive important information from the State regulatory authority that would inform the “reason to believe” inquiry, but it may receive such information from a citizen. Under this final rule, OSMRE must consider information the State regulatory authority provides about an alleged violation, eliminating duplication of resources and processes between Federal and State agencies. Cooperation between OSMRE and State regulatory authorities is mandated by SMCRA to “minimize duplication of inspections, enforcement, and administration of the Act.” 30 U.S.C. 1211(c)(12). This final rule does just that. Once OSMRE formulates reason to believe that a possible violation exists and sends a TDN to a State regulatory authority, the State will continue to have ten days to take appropriate action to cause the alleged violation to be corrected or to demonstrate good cause for not correcting the alleged violation. Thus, the regulations OSMRE is adopting in this final rule will continue to be in conformity with section 521(a)(1) of SMCRA.

Comment:
Several commenters suggested that the proposed rule clarification would provide states with unlimited time to review and respond to citizen complaints. Further, these commenters alleged that the proposed rule provision would render action on citizen complaints discretionary. According to one commenter, the proposed rule would undermine SMCRA at section 521(a) by changing the specified response time and eliminating a mandated deadline.

Response:
These characterizations neither accurately reflect the proposed rule nor reflect a proper understanding of SMCRA. The proposed rule was aimed at enhancing the coordination process between OSMRE and its State regulatory program partners to ensure that all information readily available is considered by the authorized representative before deciding whether there is reason to believe that a violation exists. The existing regulations do not specifically state that the authorized representative may consider information that a State regulatory authority provides in his or her determination of whether there is reason to believe a violation exists. Explicitly stating that information from the State regulatory authority may be considered will remove ambiguity and ensure that all stakeholders are aware of the information that OSMRE can consider

when its authorized representative formulates reason to believe. Moreover, there may have been inconsistent levels of review of information across the bureau. Specifically stating that OSMRE will consider readily available information when formulating reason to believe will also ensure that it uniformly considers all simple and effective documentation of the alleged violation, condition, or practice. Historically, while OSMRE typically considered information in its possession, the potential ambiguity in OSMRE's existing regulations may have resulted in OSMRE accepting allegations in a complaint as true without the benefit of any information that the State regulatory authority may have chosen to provide. The practice of issuing TDNs without the benefit of information from the State regulatory authority increasingly resulted in the issuance of TDNs when the State regulatory authority was already investigating the issue or had previously determined that there was not a violation of the approved State regulatory program. As described in response to other comments, this is inefficient and has resulted in duplicative processes for both OSMRE and the State regulatory authorities. OSMRE does not always receive important information from a citizen that would inform the “reason to believe” inquiry, but it may receive such information from the State regulatory authority, and the OSMRE authorized representative should be afforded this opportunity.

By way of example, a recent complaint received by an OSMRE field office involved blasting related to road construction. This complaint was ultimately found to be unrelated to a SMCRA permit. Simply generating a TDN, without considering all information readily available, resulted in a waste of OSMRE and State regulatory authority resources and taxpayer money and time; it also unnecessarily redirected resources and time away from true SMCRA-related issues. These inefficiencies could easily have been avoided by considering all readily available information, including any information the State regulatory authority chose to provide. Again, it is a basic requirement of SMCRA that OSMRE must “cooperate with . . . State regulatory authorities to minimize duplication of inspections, enforcement, and administration of [SMCRA].” 30 U.S.C. 1211(c)(12). Furthermore, as noted above, the Supreme Court in
Hodel,
452 U.S. at 289, explained that: “[SMCRA] establishes a program of cooperative federalism that allows the States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs.”

The removal of the potential inconsistency between existing § 842.11(b)(1)(i) and existing § 842.11(b)(2) in this final rule properly enhances the cooperative federalism intended by Congress when it enacted SMCRA by allowing OSMRE to consider information that a State regulatory authority chooses to provide when OSMRE is assessing whether it has reason to believe that a violation exists. Furthermore, removing the phrase “if true” eliminates any perception that OSMRE is a mere conduit to the State regulatory authority when in reality OSMRE should exercise best professional judgment when formulating reason to believe. The objective of the rulemaking is to minimize, to the extent possible, duplication of efforts associated with inspections, enforcement, and administration of SMCRA, while also ensuring that the public is involved in the enforcement process, which will allow potential violations of SMCRA and approved State programs to be identified and addressed as soon as possible. Of course, after the revisions to the existing regulations that OSMRE is adopting in this final rule take effect, OSMRE will continue to exercise the oversight of State regulatory programs that SMCRA requires.

OSMRE disagrees with the commenters' suggestion that the rule change OSMRE is adopting will result in a State regulatory authority having unlimited review time. The final rule does not alter the SMCRA-mandated ten days that a State regulatory authority has to respond once OSMRE issues a TDN. 30 U.S.C. 1271(a)(1). However, the clarification does afford OSMRE an opportunity to consider all readily information, including any information the State regulatory chooses to provide, when formulating reason to believe before issuing any TDN to the State regulatory authority. Under existing § 842.11(b)(1)(i), the authorized representative already has the authority to consider “information available” before determining that reason to believe exists. In the proposed rule, OSMRE explained that information that the authorized representative considers must be “readily available, so that the process will proceed as quickly as possible and will not become open-ended.” Thus, considering “readily available information” under this final rule may create, at most, only a modest increase in the amount of time it takes the authorized representative to decide whether he or she has “reason to believe.” Further, affording OSMRE the opportunity to easily ascertain if the State regulatory authority has been appropriately put on notice of a request for Federal inspection, including the possible violation—as is already required under the existing regulations at 30 CFR 842.12(a)—and whether or not the State regulatory authority has investigated or is actively investigating the subject of the complaint eliminates duplication and redundancy of State and Federal enforcement activities. For example, if OSMRE obtains readily available information that demonstrates that the State regulatory authority is actively investigating a citizen complaint, the OSMRE authorized representative may, using professional judgment, consider the State regulatory authority's action before determining whether reason to believe exists.

In summary, this final rule clarifies the existing TDN regulations set forth at 30 CFR 842.11 and 842.12. Nothing in this final rule nullifies the statutory requirements that OSMRE must issue a TDN when it determines that there is reason to believe that a violation exists and that a State regulatory authority has ten days to respond. As is true with the existing regulations, the final rule requires that there are only two possible outcomes when an authorized representative reviews a citizen complaint: (1) The authorized representative issues a TDN because there is reason to believe a possible violation exists, or (2) the authorized representative declines to issue a TDN because he or she does not have reason to believe a possible violation exists. Under this final rule, the authorized representative does not have discretion to not issue a TDN to the State regulatory authority once he or she determines, based on professional judgment, that there is reason to believe that a violation exists; issuance of a TDN then becomes mandatory. If the information in the citizen complaint, along with any other readily available information, is not sufficient to formulate reason to believe, the authorized representative will not issue a TDN. Finally, to ensure transparency, OSMRE will continue the practice of sending a letter to the citizen complainant explaining the decision to issue or not issue a TDN and the rationale for this decision. It is standard OSMRE practice, absent a citizen complainant's request for confidentiality, to also provide the State

regulatory authority a copy of the letter to facilitate collaboration.

F. It is Important To Clarify That “Any Information” Under 30 U.S.C. 1271(a) Includes Information From the State Regulatory Authority

Comment:
A coal industry group comprised of several companies in an Appalachian Basin-based coal State offered significant support for OSMRE's proposed clarification of the existing regulations related to the issuance of TDNs and the proposed enhancement of corrective action for State regulatory program issues. This group remarked that the proposed clarification to the existing regulations would allow regulatory authorities to use more information as part of their decision-making. Because, under the proposal, the regulations would clearly set forth that OSMRE will consider all readily available information prior to issuing a TDN, the commenter expressed that view that the proposed clarification would provide more transparency about the TDN process and allow for more cooperation between the State regulatory authority and OSMRE. The commenter also noted that the enhanced cooperation between OSMRE and the State regulatory authority would ensure that mine operations comply with SMCRA.

The coal industry group commenter noted that allowing State regulatory authorities to provide information that is directly relevant to citizen complaints before OSMRE issues TDNs is positive and improves the process. The commenter pointed out that the clarification would be an improvement and would promote efficiency because the existing process may result in the issuance of a TDN despite the fact that the State regulatory authority has valuable information that is directly related to the alleged violation. The commenter noted that without relevant information from the State regulatory authority, OSMRE may not have an opportunity to consider the totality of the situation in advance, and such an omission decreases efficiency. The commenter also noted that frequently the State regulatory authority and OSMRE receive the same complaint resulting in both agencies undertaking duplicative investigations, which the commenter claimed is in contravention of section 201(c)(12) of SMCRA, 30 U.S.C. 1211(c)(12).

Response:
OSMRE concurs with these comments as they highlight the value of coordination between the primary SMCRA regulatory authority, which is the State regulatory authority, and OSMRE as the oversight authority. Although, in the TDN context, OSMRE is exercising oversight of State regulatory authorities, there is still room for up front cooperation between OSMRE and the State regulatory authority to minimize duplication of inspections, enforcement, and administration of SMCRA, as section 201(c)(12) of SMCRA, 30 U.S.C. 1211(c)(12), contemplates. Most importantly, OSMRE values the commenter's recognition of the positive impacts of the clarification OSMRE is adopting in this final rule as it will improve compliance with SMCRA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-24137. Public record. Not legal advice.