Navajo Nation Abandoned Mine Land Reclamation (AMLR) Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 756

Navajo Nation Abandoned Mine Land Reclamation (AMLR) Plan

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Navajo Nation

AMLR plan (hereinafter referred to as the ``Navajo plan'') under the

Surface Mining Control Reclamation Act of 1977 (SMCRA). The Navajo

Nation proposed revisions to its AMLR Code of 1987 pertaining to the

reclamation of interim program coal sites. The amendment is intended to

revise the Navajo plan to be consistent with SMCRA, and to improve

operational efficiency.

EFFECTIVE DATE: April 25, 1995.

FOR FURTHER INFORMATION CONTACT:

Thomas E. Ehmett, telephone: (505) 766-1486.

SUPPLEMENTARY INFORMATION:

I. Background on Title IV of SMCRA

Title IV of SMCRA established an AMLR program for the purposes of

reclaiming and restoring lands and waters adversely affected by past

mining. The program is funded by a reclamation fee levied on the

production of coal. Generally, lands and waters eligible for

reclamation under Title IV are those that are mined or affected by

mining and abandoned or inadequately reclaimed prior to August 3, 1977,

and for which there is no continuing reclamation responsibilities under

State, Federal, Tribal, or other laws. Lands and waters abandoned or

inadequately reclaimed after August 3, 1977, are also eligible for

reclamation under provisions at sections 402(g)(4) and 404 of SMCRA.

Title IV provides for State or Tribal submittal to OSM of an AMLR

plan. The [[Page 20194]] Secretary of the Interior adopted regulations

at 30 CFR 870 through 888 that implement Title IV of SMCRA. Under these

regulations, the Secretary reviewed the plans submitted by States and

Tribes and solicited and considered comments of State and Federal

agencies and the public. Based upon the comments received, the

Secretary determined whether a State or Tribe had the ability and

necessary legislation to implement the provisions of Title IV. After

making such a determination, the Secretary decided whether to approve

the State or Tribal program. Approval granted the State or Tribe

exclusive authority to administer its plan.

Ordinarily, under section 405 of SMCRA, a State or Tribe must have

an approved surface mining regulatory program prior to submittal of an

AMLR plan to OSM. However, on July 11, 1987, the President signed a

supplemental appropriations bill (Pub. L. 100-71) that authorized the

Crow and Hopi Tribes and Navajo Nation to adopt AMLR programs without

approval of Tribal surface mining regulatory programs.

Upon approval of a State or Tribal plan by the Secretary, the State

or Tribe may submit to OSM, on an annual basis, an application for

funds to be expended by that State or Tribe on specific projects that

are necessary to implement the approved plan. Such annual requests are

reviewed and approved by OSM in accordance with the requirements of 30

CFR Part 886.

II. Background on the Navajo Plan

On May 16, 1988, the Secretary of the Interior approved the Navajo

plan. General background information on the Navajo plan, including the

Secretary's findings, the disposition of comments, and the approval of

the Navajo plan can be found in the May 16, 1988, Federal Register (53

FR 17186). Approval of the Navajo plan is codified at 30 CFR 756.13.

Subsequent actions concerning the Navajo plan and plan amendments can

be found at 30 CFR 756.14.

III. Proposed Amendment

By letter dated January 12, 1995, the Navajo Nation submitted a

proposed amendment to its AMLR plan pursuant to SMCRA (administrative

record No. NA-227). The Navajo Nation submitted the proposed amendment

at its own initiative and in response to the final rule Federal

Register notice acknowledging that the Navajo Nation would amend its

AMLR Code of 1987 to provide for the reclamation of interim program

coal sites (59 FR 49178, 48181, finding No. 1(f), September 27, 1994;

administrative record No. NA-225). The Navajo Nation proposed the

addition of new language at section 404(b) of its AMLR Code to provide

for such reclamation.

OSM announced receipt of the proposed amendment in the February 10,

1995, Federal Register (60 FR 7926), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. NA-232).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on March 10, 1995.

During its review of the proposed amendment, OSM identified

concerns relating to the provisions of the Navajo AMLR Code of 1987 at

section 404(b)(2) pertaining to the dates used to define interim

program coal sites, and the lack of a provision requiring a

determination that there are insufficient funds to provide for adequate

reclamation or abatement at the site. OSM notified the Navajo Nation of

the concerns in a telephone conversation of February 23, 1995

(administrative record No. NA-233).

The Navajo Nation responded in a letter dated February 23, 1995, by

submitting a revised amendment (administrative record No. NA-234).

Based upon the revisions to the proposed plan amendment submitted by

the Navajo Nation, OSM reopened the public comment period in the March

10, 1995, Federal Register (60 FR 13086, administrative record No. NA-

236). The public comment period ended on March 27, 1995.

IV. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 884.14 and 884.15, finds that the proposed Navajo plan amendment as

submitted by the Navajo Nation on January 12, 1995, and as revised by

it on February 23, 1995, is not inconsistent with SMCRA and is in

compliance with the corresponding Federal regulations at 30 CFR 884.14

and 884.15. Thus, the Director approves the proposed amendment.

1. Nonsubstantive Revisions to the Navajo Nation AMLR Code of 1987

The Navajo Nation proposed to recodify sections 404 (a) and (c),

eligible lands and water, of its AMLR Code of 1987, (corresponding

provisions at section 404 of SMCRA).

Because the recodification of this previously-approved section of

the Navajo Nation's AMLR Code is nonsubstantive in nature, the Director

finds it is not inconsistent with SMCRA. The Director approved the

proposed recodification.

2. Reclamation of Interim Program Coal Sites

The Navajo Nation proposed the addition of provisions at section

404(b) of its AMLR Code to provide for the reclamation of interim

program coal sites. Such sites were left in either unreclaimed or

inadequately reclaimed condition (1) between August 4, 1977, and

September 28, 1984, and the amount of the bond or other financial

guarantee is insufficient to provide for adequate reclamation or

abatement at the site, or (2) where the mining occurred between August

4, 1977, and November 5, 1990, and the surety of the mining operator

became insolvent, and as of November 5, 1990, funds immediately

available from proceedings relating to such insolvency or from any

other source were insufficient to provide adequate reclamation or

abatement at the site. In addition, to qualify for reclamation or

abatement, such sites must be either priority 1 or 2 sites pursuant to

section 403(a) (1) and (2) of SMCRA, and priority will be given to

those sites in the immediate vicinity of a residential area or which

have an adverse economic impact upon a community.

Proposed section 404(b) of the Navajo Nation AMLR Code contains the

same requirements as the counterpart Federal requirements at section

402(g)(4) of SMCRA. Therefore, the Director finds that the proposed

AMLR Code provisions are consistent with the counterpart SMCRA

provisions. The Director approves proposed section 404(b) of the Navajo

Nation AMLR Code.

V. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that were received by OSM, and OSM's responses to

them.

1. Public Comments

OSM invited public comments on the proposed amendment, but none

were received.

2. Agency Comments

Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), OSM solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Navajo plan (administrative

record Nos. NA-231 and NA-235).

(a) Arizona State Historic Preservation Officer (SHPO). On March

13, 1995, the [[Page 20195]] Arizona SHPO agreed with OSM's

determination that no aspects of the proposed amendment pertain to

cultural or historic resources (administrative record No. NA-239). As

such, the Arizona SHPO determined that the amendment would have no

effect on cultural resources under the National Historic Preservation

Act of 1966 and 36 CFR part 800.

(b) Navajo Nation Historic Preservation Department.

By letter dated February 21, 1995, the Department agreed with OSM's

determination that the proposed changes to the Navajo Nation AMLR Code

of 1987 do not pertain to cultural resources. Therefore, ti stated that

the amendment will have no effect on cultural resources (administrative

record No. NA-237).

(c) U.S. Bureau of Indian Affairs. The Bureau of Indian Affairs

stated in a memorandum dated March 13, 1995, that a technical review

had been completed by its Area Real Estate Services, Rights Protection

Section, and that it had no comments (administrative record No. NA-

238).

VI. Director's Decision

Based on the above findings, the Director approves the Navajo

Nation's proposed plan amendment as submitted on January 12, 1995, and

as revised on February 23, 1995.

As discussed in finding No. 1, the Director approves nonsubstantive

revisions to the Navajo Nation AMLR Code of 1987 at sections 404(a) and

(c), eligible lands and water.

As discussed in finding No. 2, the Director approves substantive

revisions to the Navajo Nation AMLR Code of 1987 at section 404(b),

reclamation of interim program coal sites.

The Director approves the proposed revisions of the Navajo Nation

AMLR Code of 1987 with the provision that they be fully promulgated in

identical form to the code submitted to and reviewed by OSM and the

public.

The Federal regulations at 30 CFR part 756, codifying decisions

concerning the Navajo plan, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the Tribal plan amendment process and to encourage Tribes to

bring their plans into conformity with the Federal standards without

undue delay. Consistency of Tribal and Federal standards is required by

SMCRA.

VII. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of State or Tribal AMLR plans and

revisions thereof since each such plan is drafted and promulgated by a

specific State or Tribe, not by OSM. Decisions on proposed State or

Tribal AMLR plans and revisions thereof submitted by a State or Tribe

are based on a determination of whether the submittal meets the

requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the

applicable Federal regulations at 30 CFR parts 884 and 888.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

agency decisions on proposed State or Tribal AMLR plans and revisions

thereof are categorically excluded from compliance with the National

Environmental Policy Act (42 U.S.C. 4332) by the Manual of the

Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The Tribal submittal which is the subject of this rule is based upon

Federal regulations for which an economic analysis was prepared and

certification made that such regulations would not have a significant

economic effect upon a substantial number of small entities.

Accordingly, this rule will ensure that existing requirements

established by SMCRA or previously promulgated by OSM will be

implemented by the Tribe. In making the determination as to whether

this rule would have a significant economic impact, the Department

relied upon the data and assumptions in the analyses for the

corresponding Federal regulations.

List of Subjects in 30 CFR Part 756

Abandoned mine land reclamation program, Indian lands.

Dated: April 19, 1995.

Charles E. Sandberg,

Acting Assistant Director, Western Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter E of the Code of Federal Regulations is amended as set forth

below:

PART 756--INDIAN TRIBE ABANDONED MINE LAND RECLAMATION PROGRAMS

1. The authority citation for part 756 continues to read as

follows:

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

2. Section 756.14 is amended by adding paragraph (c) to read as

follows:

Sec. 756.14 Approval of amendments to the Navajo Nation's Abandoned

Mine Land Plan.

* * * * *

(c) Revisions to sections 404 (a), (b), and (c) of the Navajo

Nation Abandoned Mine Land Reclamation (AMLR) Code of 1987, pertaining

to eligible lands and water, as submitted to OSM on January 12, 1995,

and as subsequently revised on February 23 1995, are approved effective

April 25, 1995.

[FR Doc. 95-10169 Filed 4-24-95; 8:45 am]

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