Hopi Tribe Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 756

[HO-OO3-FOR]

Hopi Tribe Abandoned Mine Land Reclamation Plan

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

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

is approving, with certain exceptions and additional requirements, a

proposed amendment to the Hopi Tribe Abandoned Mine Land Reclamation

(AMLR) plan (hereinafter, the ``Hopi Tribe plan'') under the Surface

Mining Control and Reclamation Act of 1977 (SMCRA). The Hopi Tribe

proposed revisions of and additions to plan provisions pertaining to

the purpose of the plan; eligible lands and water subsequent to

certification; coordination with other programs; land acquisition,

management, and disposal; reclamation on private land and rights of

entry; public participation; organization of the Hopi Tribe; personnel

staffing policies; purchasing policies, procurement procedures, and

accounting systems; economic conditions on the Hopi Reservation; a

description of flora and fauna at abandoned mine sites; the Hopi

Tribe's authority to administer its plan, as amended, in the absence of

a specific statute; changing the name of the designated agency; and

affirmation that the manual for purchasing policies and procedures is

in accordance with the Office of Management and Budget's (OMB) Common

Rule. Additionally, the Hopi Tribe is proposing numerous editorial and

recodification changes. The amendment revised the Hopi Tribe plan to

meet the requirements of and incorporate the additional flexibility

afforded by the revised Federal regulations and SMCRA, as amended, and

improve operational efficiency.

EFFECTIVE DATE: April 23, 1996.

FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Telephone: (505) 248-5070.

SUPPLEMENTARY INFORMATION:

I. Background on the Hopi Tribe Plan

On June 28, 1988, the Secretary of the Interior approved the Hopi

Tribe plan. General background information on the Hopi Tribe plan,

including the Secretary's findings and the disposition of comments, can

be found in the June 28, 1988, Federal Register (53 FR 24262).

Subsequent actions concerning the Hopi Tribe plan and plan amendments

can be found at 30 CFR 756.16, 756.17, and 756.18.

II. Proposed Amendment

By letter dated November 2, 1995, the Hopi Tribe submitted a

proposed amendment to its plan (administrative record No. HO-148)

pursuant to SMCRA (30 U.S.C. 1201 et seq.). The Hopi Tribe submitted

the proposed amendment in response to a September 26, 1994, letter

(administrative record No. HO-145.1) that OSM sent to the Hopi Tribe in

accordance with 30 CFR 884.15(b), and at its own initiative.

The provisions of the Hopi Tribe plan that the Hopi Tribe proposed

to revise or add were: the table of contents, including a list of

appendices; a preface to the amended reclamation plan; a list of

addenda and errata, including a list of figures; the Chairman's letter

of designation and Hopi Tribe resolution; the General Counsel's opinion

on the authority of the Hopi Tribe to conduct an AMLR program; Part I,

purpose of the Hopi Tribe plan; Part II, eligible lands and water

subsequent to certification; Part III, coordination of the Hopi AMLR

Program with other programs; Part IV, land acquisition, management, and

disposal; Part V, reclamation on private land; Part VI, rights of

entry; Part VII, Hopi Department of Natural Resources (DNR) policy on

public participation; Part VIII, organization of the Hopi Tribe; Part

IX, personnel staffing policies; Part X, purchasing policies and

procurement procedures; Part XI, accounting systems and management

accounting; Part XII, economic conditions on the Hopi Reservation; and

Part XIII, a description of flora and fauna at abandoned mine sites.

The Hopi Tribe also proposed numerous minor editorial and grammatical

revisions and recodification changes. Finally, the Hopi Tribe proposed

changes to the appendices included in its plan as follows: (a) provided

as ``Appendix 1,'' the ``Constitution and By-Laws of the Hopi Tribe,''

which was approved December 19, 1936, and amended on August 1, 1969,

February 14, 1980, and December 7, 1993, (b) provided cover pages for

Appendices 2 through 12, and (c) changed the title of Appendix 7 from

``Hopi Tribe Resolution H-93-80'' to ``Hopi Tribe Resolution H-93-80

and Subsequent Correspondence to the Bureau of Census.''

In addition, the Hopi Tribe proposed the deletion of the following

sections in their entirety: (a) Section 884.13(e)(1), which is replaced

by specific criteria for eligible lands and waters subsequent to

certification at Part II of the Hopi Tribe plan; (b) Sections

884.13(e)(2) and 884.13(e)(3), which are replaced by a description of

current problems and needs and current proposals at Part II, section H

of the Hopi Tribe plan; and (c) Section 884.13(f)(2), Description of

Aesthetic, Cultural and Recreational Conditions of the Hopi

Reservation.

The Hopi Tribe also proposed adding the following items to its

plan: (1) A memorandum dated May 18, 1995, from the Hopi Tribe's

Assistant General Counsel affirming the authority of the Tribe's AMLR

Program to administer the Hopi Tribe plan as amended in the absence of

any AMLR statute; (2) Hopi Tribal Resolution H-134-89 that provides

documentation of the Tribe's action changing the name of the Office of

Natural Resources to the Department of Natural Resources; and (3) a

memorandum dated August 31, 1995, from the Tribe's Office of Financial

Management that affirms that the Hopi Tribe ``Purchasing Policies and

Procedures Manual'' is in accordance with OMB's Common Rule.

OSM announced receipt of the proposed amendment in the December 7,

1995, Federal Register (60 FR 62786), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. HO-150).

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

The public comment period ended on January 8, 1996.

III. Director's Findings

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

CFR 884.14 and 884.15, finds, with certain

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exceptions and additional requirements, that the proposed plan

amendment submitted by the Hopi Tribe on November 2, 1995, meets the

requirements of the corresponding Federal regulations and is consistent

with SMCRA. Thus, the Director approves the proposed amendment.

1. Nonsubstantive Revisions to the Hopi Tribe Plan Provisions

The Hopi Tribe proposed revisions to the following previously-

approved plan provisions that are nonsubstantive in nature and consist

of minor editorial, punctuation, grammatical, and recodification

changes (corresponding Federal regulation or SMCRA provisions are

listed in parentheses):

Table of Contents (there are no counterpart Federal regulations or

SMCRA provisions), title of Part II, ``Eligible Lands and Waters

Subsequent to Certification;''

Table of Contents, (there are no counterpart Federal regulations or

SMCRA provisions), List of Appendices;

List of Addenda and Errata, (there are no counterpart Federal

regulations or SMCRA provisions), title for this part;

List of Figures, (there are no counterpart Federal regulations or

SMCRA provisions), title of Figure 4 and deletion of Figure 5;

Chairman's Letter of Designation and Hopi Tribe Resolution, (30 CFR

884.13(a)), designation of agency authorized to administer approved

plan;

Opinion of Legal Counsel, (30 CFR 884.13(b)), authority of

designated agency to conduct the AMLR program in accordance with the

requirements of Title IV of SMCRA;

Part III, (30 CFR 884.13(c)), coordination of Tribal AML programs

with other programs;

Sections IV, A(2) (c), (d), (e), B(2), and C (30 CFR Part 879),

land acquisition, management, and disposal;

Part V and Figures 1 and 2, (30 CFR Part 882), reclamation on

private land;

Sections VI, A, B, and C, (30 CFR Part 877), rights of entry;

Part VII, (30 CFR 884.13(c)(7)), Hopi DNR policy on public

participation;

Part VIII and Figure 4, (30 CFR 884.13(d)(1)), organization of the

Hopi Tribe;

Part IX, (30 CFR 884.13(d)(2)), personnel staffing policies;

Part X, (30 CFR 884.13(d)(3)), purchasing and procurement;

Part XI, (30 CFR 884.13(d)(4)), management accounting;

Deletion of section 884.13(e)(1) [replaced by Part II] and deletion

of sections 884.13(e) (2) and (3) [replaced by section II, H], (30 CFR

884.13 (c) (1) and (2)), purpose of Hopi Tribe reclamation plan and

criteria for ranking and identifying projects;

Part XIII, (30 CFR 884.13(f)(2), flora and fauna;

Appendices 1 through 12, (there are no counterpart Federal

regulations or SMCRA provisions), addition of cover pages; and

Appendix 7, (there is no counterpart Federal regulation or SMCRA

provision), change of title of appendix.

Because the proposed revisions to these previously-approved Hopi

Tribe plan provisions are nonsubstantive in nature, the Director finds

that they meet the requirements of the Federal regulations and are

consistent with the corresponding provisions of SMCRA. Therefore, the

Director approves the proposed revisions to these plan provisions.

In addition, the Director is accepting the following supporting

documents for inclusion to the Hopi Tribe AMLR plan:

Memorandum from Assistant General Counsel/Legislative Counsel to

DNR dated May 18, 1995, concerning elimination of Title IV from the

draft Hopi Code Mining Ordinance;

Hopi Tribal Council Resolution H-134-89, adopted August 29, 1989;

and

Memorandum from the Hopi Tribe Office of Financial Management to

DNR dated September 7, 1995, concerning purchasing procedures.

2. Substantive Revisions to the Hopi Tribe Plan Provisions That Are

Substantially Identical to the Corresponding Provisions of the Federal

Regulations and SMCRA

The Hopi Tribe proposed revisions to the following plan provisions

that are substantive in nature and contain language that is

substantively identical to the requirements of the corresponding

Federal regulations and SMCRA provisions (listed in parentheses):

Preface to Amended Reclamation Plan, (section 411 of SMCRA and 30

CFR Part 875), program goals and objectives and eligible projects;

Section I, B, (30 CFR 884.13(a)), designation of administrative

authority;

Section I, C, (section 403(a) of SMCRA), introductory paragraph for

reclamation priorities;

Section I, C (4) and (5), (section 403(a) (4) and (5) of SMCRA),

deletion of existing C (4) and recodification of C(5) and (6) and C(4)

and (5);

Section I, C, (deleted section 402(g)(2) of SMCRA), deletion of

provisions concerning allocation of funds;

Sections II, A(1) (a) through (f), (30 CFR 874.12 (a) through (h)),

eligible coal lands and water;

Section II, A(1)(g), (30 CFR 874.16), contractor responsibility;

Sections II, B(1) (a) and (b), (30 CFR 875.14(a) (1) and (2)),

eligible lands and water subsequent to certification;

Sections II, B(1)(c), (d)(i) and (iii), (e), and (g), (30 CFR

875.15(a), (b)(1) and (3), (c), and (e)), reclamation priorities for

noncoal program;

Sections II, C through F, (30 CFR 875.16, 875.17, 875.19, and

875.20), exclusion of certain noncoal reclamation sites, noncoal land

acquisition authority, limited liability, and contractor

responsibility;

Section II, H and [deletion of] ranking and selection of noncoal

reclamation projects and Table I, Comprehensive/Problem Evaluation

Matrix, (30 CFR 884.13 (c) and (e)), description of needs, proposed

construction and activities;

Section IV, A(2)(b), (30 CFR 879.11), lands eligible for

acquisition;

Part XII, (30 CFR 884.13(f)(1)), economic conditions of the Hopi

Reservation; and

Appendix 1, (there is no counterpart Federal regulation or SMCRA

provision), Constitution and By-Laws of the Hopi Tribe, as amended.

Because these proposed revisions to the Hopi Tribe plan provisions

are substantively identical to the corresponding provisions of the

Federal regulations and SMCRA or concern proposed deletions of

provisions deleted from Title IV of SMCRA, the Director finds that they

meet the requirements of the Federal regulations and are consistent

with SMCRA. The Director approves these proposed revisions to the Hopi

Tribe plan provisions.

3. Preface to Amended Reclamation Plan

The Hopi Tribe proposed the addition of a preface to the Hopi Tribe

plan, which provides, in part, a discussion in the introductory

paragraph of the reasons for the amended reclamation plan. The preface

discusses the Abandoned Mine Reclamation Act of 1990 (Pub. L. 101-508),

but there is no mention of the Energy Policy Act of 1992. (Pub. L. 102-

486, EPACT), which was enacted October 24, 1992. EPACT amended Title IV

of SMCRA in several ways. The Hopi Tribe incorporated in the proposed

revisions to the Hopi Tribe plan provisions addressing some of the

amended Federal requirements. The Director finds that the preface is

consistent with title IV of SMCRA and is in compliance with the

implementing Federal regulations, but suggests that the introductory

paragraph be revised to also reference the Energy Policy Act of 1992

and provide that the plan amendment has been prepared to be in

conformance with it.

[[Page 17835]]

The introductory paragraph also provides that the amendment has

been prepared to meet the requirements of 30 CFR Parts 870 (Abandoned

Mine Reclamation Fund-Fee Collection and Coal Production Reporting),

872 (Abandoned Mine Reclamation Funds), 873 (Future Reclamation Set-

Aside Program), 874 (General Reclamation Requirements), 875 (Noncoal

Reclamation), 876 (Acid Mine Drainage Treatment and Abatement Program),

and 886 (State and Tribal Reclamation Grants). However, the amendment

contains no provisions concerning a future reclamation set-aside

program or an acid mine drainage treatment and abatement program. The

Director recommends that the references to the provisions concerning a

future reclamation set-aside program and an acid mine drainage

treatment and abatement program should be deleted.

4. Section I, A, Purpose of the Hopi Tribe AMLR Plan

a. Section I, A.--The Hopi Tribe proposed to revise Part I to

provide a general description of funding priorities similar to those at

sections 403 (a) and (b)(1) of SMCRA, which pertain only to coal, and

to include reclamation activities pertaining to the adverse effects and

impacts of mineral mining and processing practices [noncoal] similar to

those provided at sections 411 (c) and (e) of SMCRA.

However, the Hopi Tribe did not retain the distinctions between

coal and noncoal by setting out separate provisions for each. Title IV

of SMCRA and the Federal regulations distinctly and separately provide

requirements concerning coal reclamation at section 403 and 30 CFR Part

874 and noncoal reclamation at section 411 and 30 CFR Part 875. The

Director finds that the Hopi Tribe's proposed replacement of the word

``coal'' with the phrase ``mining and processing practices'' at section

I, A inappropriately combines coal and noncoal reclamation activities,

and is, therefore, inconsistent with SMCRA and not in compliance with

the Federal regulations. The Director is requiring, in order to

properly reflect the objectives and priorities for expenditures of

moneys from the abandoned mine land fund, the Hopi Tribe to revise Part

I by creating separate provisions for coal and noncoal reclamation

activities in order to be consistent with sections 403 and 411 of SMCRA

and in compliance with the Federal regulations at 30 CFR Parts 874 and

875.

b. Section I, A(1).--Section I, A(1) provides, in part, that one

purpose of the Hopi AMLR plan is to ``protect the health, safety, and

general welfare of members of the Hopi Tribe * * *.'' The language

contained in this section is similar to sections 403(a) (1) and (2) and

411(c) (1) and (2) of SMCRA, except that sections 403 and 411

distinguish between the ``protection of public health, safety, general

welfare, and property from extreme danger of adverse effects'' of

mining (emphasis added) and the ``protection of public health, safety,

and general welfare from adverse effects'' of mining. Section I, A of

the Hopi Tribe plan is a general description of the purpose the plan

itself. As such, the Director finds that, even though section I, A(1)

does not distinguish between the ``extreme danger of adverse effects''

and the ``adverse effects'' of mining and processing practices, the

plan at sections I, C (1) and (2) and proposed II, B(1)(d) (i) and (ii)

provide for coal and noncoal reclamation priorities, which specifically

address the ``extreme danger of the adverse effects'' and the ``adverse

effects'' consistent with sections 403(a) and 411(c) of SMCRA.

Therefore, the Director approves the proposed language of section I,

A(1).

c. Section I, A(2).--The proposed revisions at section I, A(2)

provide that another purpose of the Hopi AMLR plan is to ``restore land

and water resources degraded by the adverse effects of mining and

processing practices for both aesthetic and conservation reasons.''

This language is similar to sections 403(a)(3) and 411(c)(3) of SMCRA,

except that sections 403 and 411 also provide for the restoration of

the environment previously degraded by mining practices; and section

403(a)(3), which concerns coal reclamation only, includes restoration

measures for conservation and development of soil, water (excluding

channelization), woodland, fish and wildlife, recreation resources, and

agricultural productivity. The specific priorities for coal and noncoal

reclamation concerning restoration of land and water resources and the

environment previously degraded by mining practices are provided for in

the Hopi Tribe plan at section I, C(3) and proposed section II,

B(1)(d)(iii). These provisions are substantively identical to sections

403(a)(3) and 411(c)(3) of SMCRA. Therefore, the Director finds that

the general description concerning restoration of land and water

resources provided in the purpose of the Hopi Tribe plan at section I,

A(2) is consistent with sections 403 and 411 of SMCRA. The Director

approves the revisions to this plan provision.

d. Section I, A(3).--The Hopi Tribe proposed to revise section I, A

of the Hopi Tribe plan by adding new language at paragraph (3) ``to

provide for protecting, repairing, replacing, constructing, or

enhancing facilities related to water supply, including water

distribution facilities and treatment plants, to replace water supplies

adversely affected by mining and processing practices.'' The Director

finds that proposed section I, A(3), which is similar to section

403(b)(1) of SMCRA, is inconsistent with SMCRA for two reasons. First

of all, the Hopi Tribe is proposing to extend the provisions of section

I, A(3) to noncoal reclamation activities by proposing to change the

word ``coal'' to ``mining and processing practices.'' The provisions of

section 403 of SMCRA apply only to coal, and as proposed at I, A(3) in

the Hopi Tribe plan, the water replacement provision includes all

mining and processing practices, and is not limited to only coal mining

practices. Secondly, section 403(b)(1) of SMCRA also only applies in

those States or Indian tribes that have not certified to the completion

of coal reclamation. The Hopi Tribe provided certification of

completion of coal reclamation in a letter from the Chairman and Chief

Executive Officer of the Hopi Tribe dated February 2, 1994 (59 FR

29719, June 9, 1994). The Director requires the Hopi Tribe to revise

its AMLR plan by deleting section I, A(3) and recodifying the

subsequent paragraphs accordingly.

e. Section I, A(4).--The Hopi Tribe proposed to add new language at

section I, A(4) ``to provide for the protection, repair, replacement,

construction, or enhancement of public facilities such as utilities,

roads, recreation, and conservation facilities adversely affected by

mining and processing practices.'' This provision is similar to section

403(a)(4) of SMCRA, except that I, A(4) applies to ``mining and

processing practices'' while section 403(a)(4) pertains only to public

facilities adversely affected by coal mining practices (emphasis

added). Also, subsequent to certification, reclamation projects

involving the protection, repair, replacement, construction, or

enhancement of utilities, such as those relating to water supply,

roads, and other facilities that have been adversely affected by mining

and processing practices, and the construction of public facilities in

communities impacted by coal or other mineral mining and processing

practices, are provided for at section 411(e) of SMCRA. Therefore, the

Director finds that section I, A(4) is inconsistent with sections

403(a)(4) and 411(e) of SMCRA. The Director is requiring the Hopi Tribe

to revise

[[Page 17836]]

section I, A(4) to reflect the objectives and priorities concerning

public facilities set forth at section 411(e) of SMCRA.

5. Sections II, A(1), (f) and (h), Coal Reclamation After Certification

a. Section II, A.--Section II, A does not contain provisions

concerning limited liability for coal reclamation activities similar to

the Federal regulations at 30 CFR 874.15. This plan amendment does

provide at proposed section II, E limited liability provisions, which

are viewed by OSM, consistent with the Federal regulations at 30 CFR

Parts 874 and 875, which provide separate and distinct provisions for

coal and noncoal reclamation, including limited liability provisions,

as only applying to noncoal reclamation activities. As provided in

OSM's September 26, 1994, 30 CFR Part 884 issue letter (administrative

record No. HO-145.1), the Hopi Tribe was given the option to adopt

limited liability provisions for coal reclamation activities similar to

the counterpart Federal regulations at 30 CFR 874.15. Because the Hopi

Tribe was given the discretion to determine whether to include in its

plan limited liability provisions for coal reclamation activities, the

Director finds that section II, A is in compliance with 30 CFR Part 875

and approves section II, A without a specific limited liability

provision for coal. The Director cautions the Hopi Tribe, however, that

should any coal projects occur subsequent to the Hopi Tribe's

certification of completion of coal reclamation, the Hopi Tribe AMLR

program may be held liable under Federal law for any costs or damages

as a result of any action or omitted action while carrying out its

approved abandoned mine reclamation plan. The Hopi Tribe may wish to

revise section II, A to extend its limited liability coverage to coal

reclamation projects.

b. Section II, A(1).--Proposed section II, A(1) of the Hopi Tribe

AMLR plan provides that February 2, 1994, is the effective date of the

Hopi Tribe's certification that all known abandoned coal mine problems

had been addressed. This date is actually the date that the Hopi Tribe

submitted to OSM its certification of completion of coal reclamation

with a request for concurrence by the Secretary of the Interior. OSM

approved the Hopi Tribe's certification effective June 9, 1994 (see 59

FR 29721). The Director is not requiring the Hopi Tribe to revise

section II, (A)(1) to reflect the correct effective date because

between February 2, 1994, which is the date of the Hopi Tribe's

submittal, and June 9, 1994, which is the effective date of the

certification, no new coal problems were identified as evidenced by the

lack of public response to the proposed rule Federal Register notice

seeking public participation in the certification process (see 59 FR

29720). Therefore, the Director is taking this opportunity to clarify

that the effective date of the Hopi Tribe's certification of completion

of coal reclamation is June 9, 1994.

Also, proposed section II, A(1) requires the Hopi Tribe to abate

coal problems found after the effective date of certification of

completion of coal reclamation in the first grant cycle following

discovery of any coal problem subject to the availability of funds

distributed to the Hopi Tribe in that cycle. The Director finds that

this requirement is consistent with the requirements at 30 CFR

875.14(b) of the Federal regulations, except that Sec. 875.14(b) also

provides that ``[t]he coal project would be subject to the coal

provisions specified in sections 401 through 410 of SMCRA.'' This

language ensures that should a coal problem occur, a State or Indian

tribe that has certified to the completion of coal reclamation, would

carry out subsequent coal reclamation activities under the State of

Indian tribe authorities relating to coal and not pursuant to noncoal

authority contained in section 411 of SMCRA. Therefore, the Director

approves section II, A(1) to the extent that it requires the Hopi Tribe

to abate any new coal problems that arise after the effective date of

the certification of completion of coal reclamation and requires the

Hopi Tribe to modify section II, A(1) to require that any coal project

would be subject to the provisions of sections 401 through 410 of SMCRA

or otherwise amend its AMLR plan to provide that new coal projects

identified after the effective date of certification would be subject

to the coal provisions of SMCRA.

c. Section II, A(1)(h).--The Hopi Tribe proposed at section II,

A(1)(h) to require that Form OSM-76 be submitted to OSM upon coal

project completion to report accomplishments achieved through the

project. This provision is in compliance with the Federal regulations

at 30 CFR 886.23 to the extent that the Hopi Tribe is required to

submit Form OSM-76 to OSM upon project completion. However, 30 CFR

886.23 also requires the submission of other forms as specified by OSM,

including reporting forms for each grant and any other closeout

reports. The grant document awarding AML funds to a State or Indian

tribe includes a condition requiring the grantee to submit financial

status reports, performance reports, and other such reports according

to the timing, content, and format as required by OSM. Such documents

are signed, not only by the OSM Field Office Director, but also by an

officer of the grantee authorized to accept the award with all its

conditions. Because the grant reporting requirements are attached to

the grant document, the Hopi Tribe AMLR plan appropriately does not

need to provide for reports concerning the grant itself. Therefore, the

Director finds section II, A(1)(h) is in compliance with the Federal

regulations at 30 CFR 886.23 and is not requiring the Hopi Tribe to add

requirements at section II, A(1)(h) concerning reporting information on

other forms specified by OSM. The Director approves section II,

A(1)(h).

6. Sections II, B(1)(d)(ii), (f), and G, Noncoal Reclamation After

Certification

a. Section II, B(1)(d)(ii).--The Hopi Tribe proposed to add

language at section II, B(1)(d)(i) through (iii) to provide criteria

for determining the priority of noncoal reclamation projects and

construction of facilities. The proposed criteria are similar to the

criteria provided in the Federal regulations at 30 CFR 875.15(b)(1)

through (3), except that section II, B(1)(d)(ii) of the Hopi Tribe AMLR

plan includes, as priority 2, the protection of property from the

adverse effects of mineral mining and processing practices. 30 CFR

875.15(b)(2) provides, as priority 2, for the protection of public

health, safety, and general welfare from the adverse effect of mineral

mining and processing practices. The Director finds that section II,

B(1)(d)(ii) of the Hopi Tribe AMLR plan, by including the protection of

property from the adverse effects of noncoal mining as a second level

priority, is not in compliance with the Federal regulations, which

provide for the protection of property from the extreme danger of the

adverse effects of noncoal mining as a level one priority. Therefore,

the Director requires the Hopi Tribe to revise section II, B(1)(d)(ii)

by deleting the word ``property'' or otherwise modify its plan to

provide the same criteria as that at 30 CFR 875.15(b)(2) for priority 2

noncoal reclamation.

b. Section II, B(1)(f).--The Hopi Tribe proposed at section II,

B(1)(f) to provide that where the Chairman of the Hopi Tribe determines

there is a need for activities or construction of specific public

facilities related to the coal or mineral industry on Tribal lands

impacted by coal or mineral development, the Tribe may submit a grant

application to OSM requesting funds to carry out such activities or

[[Page 17837]]

construction. This provision is in compliance with the Federal

regulations at 30 CFR 875.15(d), which allow a State or Indian Tribe to

request funding for a public facility if the Governor of a State or

head of a governing body of an Indian tribe determines there is a need

for the construction of a public facility related to the coal or

minerals industry. 30 CFR 875.15(d) also requires that where a State or

Tribe determines there is a need for activities or construction, the

Director of OSM must concur in that need. As discussed in the preamble

of the final rule Federal Register notice (see 59 FR 28136, 28162-3,

May 31, 1994), OSM, concerned that the AML program not be sidetracked

from its primary mission to reclaim lands and waters damaged by coal

and noncoal mining processes, must determine whether a need exists for

projects involving the construction of facilities pursuant to section

411(f) SMCRA. This determination is an action carried out solely by

OSM, and the State or Tribe is not involved in the determination made

by OSM. Therefore, the Hopi Tribe plan does not need to provide for

this action. The Director approves section II, B(1)(f), and is taking

this opportunity to reiterate that, prior to granting AML funds for

public facility projects proposed under section 411(f) of SMCRA and the

Federal regulations at 30 CFR 875.15(d), OSM's Director will concur

with the Hopi Tribe Chairman's statement of need for such projects.

c. Section II, G.--The Hopi Tribe proposed at section II, G that

Form OSM-76 be submitted to OSM upon noncoal project completion to

report accomplishments achieved through the project. The Director finds

that this provision is in compliance with the Federal regulations at 30

CFR 886.23(b). The Director also notes that the documents awarding

grants require, as a condition of acceptance, certain information to be

reported by the grantee, which complies with the reporting requirements

of 30 CFR 886.23(a). Therefore, the Director approves proposed section

II, G (see finding No. 5(c)).

7. Sections IV, A(1), 2(a)(i), and B(1), Land Acquisition, Management,

and Disposal

a. Section IV, A(1).--The Hopi Tribe proposed to revise section IV,

A(1) to provide, in part, that land adversely affected by coal and

noncoal mining practices, including refuse piles and all coal refuse

piles thereon, may be acquired by the Hopi Tribe for the purposes of

the reclamation program when the acquisition of the lands meets the

requirements of section 407 of SMCRA (emphasis added). This provision

is in compliance with the Federal regulations at 30 CFR 879.11(a) and

(c), concerning lands eligible for acquisition. However, the Federal

regulations at 30 CFR 875.17 extend the land acquisition authority to

noncoal. At section IV, A(1), the Hopi Tribe proposed changing the

phrase ``coal mining practices'' to the phrase ``coal and noncoal

mining practices'' in one instance, but did not change ``coal refuse''

to a term that ensures that refuse on lands adversely affected by

noncoal mining practices may also be acquired under this provision. The

Director approves section IV, A(1), but requires the Hopi Tribe to

revise it by deleting the word ``coal'' from the phrase ``coal refuse

thereon'' to ensure that this provision extends to refuse on land

adversely affected by past noncoal practices.

b. Section IV, A(2)(a)(i).--The Hopi Tribe proposed revisions at

section IV, A(2)(a)(i) concerning appraisals to provide for a

``valuation of the fair market value * * *'' and ``principle of best

and highest use * * *.'' The provisions of section IV, A(2)(a)(i) are

in compliance with the Federal regulations at 30 CFR 879.12 (a) and

(d), except that the language proposed by the Hopi Tribe concerning

fair market value and use is not the same language as that used in the

recognized standards for acquisitions. 30 CFR 879.12(d) requires OSM or

an Indian tribe which acquires land to comply with the Uniform

Relocation Assistance and Real Property Acquisition Policies Act of

1970 (URA), 42 U.S.C. 4601, et seq., and 41 CFR Part 114-50. URA

applies to all Federal or federally-assisted activities that involve

the acquisition of real property. The regulations implementing URA are

at 49 CFR Part 24. 49 CFR 24.103 requires that a detailed appraisal

shall reflect nationally recognized standards, including the Uniform

Appraisal Standards for Federal Land Acquisition (see 54 FR 8912, 8934,

March 2, 1989). The ``Uniform Appraisal Standards for Federal

Acquisitions'' handbook, which by reference is the standard required by

the Federal regulations at 30 CFR 879.12, provides for a

``determination of the fair market value'' and ``the principle of

highest and best use.''

Even though the language proposed by the Hopi Tribe at section IV,

A(2)(a)(i) does not use the standardized language for appraisals, the

Director interprets the terms ``valuation of fair market value'' and

``the principle of best and highest use'' as having the same meaning as

the recognized standards for a ``determination of fair market value''

and the ``principle of highest and best use.'' Therefore, the Director

finds section IV, A(2)(a)(i) to be in compliance with the Federal

regulations at 30 CFR 879.12 and approves the proposed revisions.

c. Section IV, B(1).--As proposed, section IV, B(1) provides that

``[l]and acquired under rules of section A of this part Hopi AML

Program and Tribal Council concurrence, for any lawful purpose that is

not inconsistent with the reclamation activities and post-reclamation

uses for which it was acquired.'' The proposed deletion of the phrase

``may be used, pending'' between the phrases ``section A of this part''

and ``Hopi AML Program and Tribal concurrence'' causes the sentence to

become unclear. The counterpart Federal regulations at 30 CFR 879.14

provide the missing language as follows: `` ``[l]and acquired under

this part may be used for any lawful purpose.'' The Director finds that

section IV, B(1) is in compliance with 30 CFR 879.14, and approves the

proposed revisions concerning the references to ``section A'' and

``this part.'' The Director, however, requires the Hopi Tribe to remove

the deletion of the phrase ``may be used, pending.''

8. Section VI, C, Rights of Entry for Emergency Reclamation

The Hopi Tribe proposed to delete existing section VI, C concerning

entry for emergency reclamation. The Federal regulation at 30 CFR

877.14(a) provides for entry by OSM, its agents, employees, or

contractors upon land where an emergency exists and on any other land

to have access to the land where the emergency exists to restore,

reclaim, abate, control, or prevent the adverse effects of coal [and

noncoal as provided by 30 CFR 875.17] mining practices and to do all

things necessary to protect the public health, safety, or general

welfare. The preamble of the final rule for 30 CFR Part 877 (see 47 FR

28574, 28583, June 30, 1982) states that final rule 30 CFR 877.14

concerning emergency reclamation activities applies exclusively to OSM,

its agents, employees, and contractors. In the case of emergency

reclamation on Hopi Indian lands, OSM is the authority because the Hopi

Tribe did not request authority to conduct emergency response

reclamation under the original plan approval (see 53 FR 24262, June 28,

1988) and has not subsequently sought emergency power through the

amendment process. Because the emergency program on Hopi Indian lands

rests exclusively with OSM, the Director finds the deletion of existing

section VI, C of the Hopi Tribe plan to

[[Page 17838]]

be in compliance with the Federal regulations at 30 CFR Part 877.

Therefore, the Director approves the deletion.

9. Section 884.13(f)(2), Description of Aesthetic, Cultural and

Recreational Conditions of the Hopi Reservation

The Hopi Tribe proposed deletion of Sec. 884.13(f)(2), which

provided a description of aesthetic, cultural and recreational

conditions of the Hopi Reservation. The counterpart Federal regulation

at 30 CFR 884.13(f)(2) requires that the reclamation plan include a

general description of the conditions prevailing in different

geographic areas of the Indian lands where reclamation is planned,

including significant esthetic, historic or cultural, and recreational

values. The Hopi Tribe did not provide, in this amendment, a

justification for the proposed deletion. Because 30 CFR 884.13(f) is a

specific requirement for information that shall be included in a State

or Tribe reclamation plan, the Director finds that the proposed

deletion of Sec. 884.13(f)(2) of the Hopi Tribe plan is not in

compliance with the Federal regulation at 30 CFR 884.13(f)(2). The

Director, therefore, requires the Hopi Tribe to remove its proposed

deletion of Sec. 884.13(f)(2) or otherwise provide the information

required by 30 CFR 884.13(f)(2) in its reclamation plan.

IV. 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. Federal 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 Hopi Tribe plan (administrative

record Nos. HO-149 and 152).

The State Historic Preservation Office for the State of Arizona

responded on January 9, 1996, that the amendment had been reviewed and

stated that the proposed changes did not pertain to cultural resource

preservation (administrative record No. HO-151).

V. Director's Decision

Based on the above findings, the Director approves, with certain

exceptions and additional requirements, the Hopi Tribe's proposed plan

amendment as submitted on November 2, 1995.

With the requirement that the Hopi Tribe further revise its plan

provisions, the Director does not approve, as discussed in:

(1) finding No. 4(a), Part I, concerning the purpose of the Hopi

Tribe plan; finding No. 4(d), section I, A(3), concerning facilities

related to water supplies; and finding No. 4(e), section I, A(4),

concerning public facilities projects;

(2) finding No. 6(a), section II, B(1)(d)(ii), concerning the

priority 2 noncoal reclamation activities; and

(3) finding No. 9, Sec. 884.13(f)(2), concerning proposed deletion

of provisions related to a description of aesthetic, cultural and

recreational conditions of the Hopi Reservation.

The Director approves, as discussed in:

(1) finding No. 1, the Table of Contents, concerning the title of

Part II and List of Appendices; List of Addenda and Errata, concerning

the title; List of Figures, concerning the title of Figure 4 and

deletion of Figure 5; Chairman's Letter of Designation and Hopi Tribe

Resolution, concerning the designation of the Tribal agency authorized

to administer the approved plan; Opinion of Legal Counsel, concerning

the authority of the designated agency to conduct the AMLR program in

accordance with the requirements of Title IV of SMCRA; Part III,

concerning coordination of Tribal AML programs with other programs;

sections IV, A(2) (c), (d), (e), B(2), and C, concerning land

acquisition, management, and disposal; Part V and Figures 1 and 2,

concerning reclamation on private land; sections VI, A, B, and C,

concerning rights of entry; Part VII, concerning the Hopi DNR policy on

public participation; Part VIII and Figure 4, concerning organization

of the Hopi Tribe; Part IX, concerning personnel staffing policies;

Part X, concerning purchasing and procurement; Part XI, concerning

management accounting; deletion of sections 884.13(e) (1), (2), and

(3), concerning the purpose of Hopi Tribe reclamation plan and criteria

for ranking and identifying projects; Part XIII, concerning flora and

fauna; Appendices 1 through 12, concerning the addition of cover pages;

Appendix 7, concerning the title of the appendix; a memorandum from the

Assistant General Counsel/Legislative Counsel to DNR dated May 18,

1995, concerning the elimination of Title IV from the draft Hopi Code

Mining Ordinance; Hopi Tribal Council Resolution H-134-89, adopted

August 29, 1989; and a memorandum from the Hopi Tribe Office of

Financial Management to DNR dated September 7, 1995, concerning

purchasing procedures;

(2) finding No. 2, preface to the amended reclamation plan,

concerning program goals and objectives and eligible projects; section

I, B, concerning the designation of administrative authority; section

I, C, concerning reclamation priorities; sections I, C (4) and (5),

concerning deletion of existing C(4) and recodification of C (5) and

(6) as C (4) and (5); section I, C, concerning deletion of allocation

of funds provisions; sections II, A(1) (a) through (f), concerning

eligible coal lands and water; section II, A(1)(g), concerning

contractor responsibility; sections II, B(1) (a) and (b), concerning

eligible lands and water subsequent to certification; sections II,

B(1)(c), (d) (i) and (iii), (e), and (g), concerning reclamation

priorities for noncoal program; sections II, C through F, concerning

exclusion of certain noncoal reclamation sites, noncoal land

acquisition authority, limited liability, and contractor

responsibility; section II, H, concerning description of needs,

proposed construction and activities, and deletion of ranking and

selection of noncoal reclamation projects and Table I, Comprehensive/

Problem Evaluation Matrix; section IV, 2(b), concerning lands eligible

for acquisition; Part XII, concerning economic conditions of the Hopi

Reservation; and Appendix 1, concerning the amended constitution and

by-laws of the Hopi Tribe;

(3) finding No. 3, preface to the amended reclamation plan,

concerning the introductory paragraph;

(4) finding No. 4(b), section I, A(1), concerning the protection of

the health, safety, and general welfare of members of the Hopi Tribe

and finding No. 4(c), concerning the restoration of land and water

resources;

(5) finding No. 5(a), section II, A, concerning limited liability

provisions for coal reclamation activities and finding No. 5(c),

section II, A(1)(h), concerning reports;

(6) finding No. 6(b), section II, B(1)(f), concerning the need for

activities or construction of specific public facilities related to the

coal or mineral industry on Tribal lands impacted by coal or mineral

development and finding No. 6(c), section II, G, concerning reports;

(7) finding No. 7(b), section IV, A(2)(a)(i) concerning appraisals;

and

(8) finding No. 8, section VI, C, concerning entry for emergency

reclamation.

[[Page 17839]]

With the requirement that the Hopi Tribe further revise its plan

provisions, the Director approves, as discussed in:

(1) finding No. 5(b), section II, A(1), concerning the abatement of

any new coal problems that arise after the effective date of the

certification of completion of coal reclamation;

(2) finding No. 7(a), section IV, A(1), concerning the acquisition

of lands by the Hopi Tribe; and

(3) finding No. 7(c), section IV, B(1), concerning management of

acquired lands.

The Director approves the plan provisions as proposed by the Hopi

Tribe with the provision that they be fully promulgated in identical

form to the plan provisions submitted to and reviewed by OSM and the

public.

The Federal regulations at 30 CFR Part 756.17, codifying decisions

concerning the Hopi Tribe plan, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the Tribe plan amendment process and to encourage Tribes to

bring their plans into conformity with the Federal standards without

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

SMCRA

VI. 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 Tribe or State AMLR plans and

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

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

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

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 Tribe or State 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 Tribe or State 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 or State. 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 reclamation programs, Indian lands, Surface mining,

Underground mining.

Dated: April 16, 1996.

Russell F. Price,

Acting Regional Director, Western Regional Coordinating 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 756.17 is revised to read as follows:

Sec. 756.17 Approval of the Hopi Tribe's Abandoned Mine Land

Reclamation Plan Amendments.

The following amendments to the Hopi Tribe's abandoned mine land

reclamation plan are approved.

(a) The Hopi Tribe certification of completion of coal reclamation,

as submitted on February 2, 1994, is approved effective June 9, 1994.

(b) With the exceptions of Part I, concerning the purpose of the

Hopi tribe plan; section I, A(3) concerning facilities related to water

supplies; section I, A(4), concerning public facilities projects;

section II, B(1)(d)(ii), concerning the protection of property; and

section 884.13(f)(2), concerning a description of aesthetic, cultural

and recreational conditions of the Hopi Reservation, revisions to and

additions of the following plan provisions, as submitted to OSM on

November 2, 1995, are approved effective April 23, 1996.

Table of Contents--Title of Part II and List of Appendices;

List of Addenda and Errata--Title for this part;

List of Figures--Title of Figure 4 and deletion of Figure 5;

Preface to Amended Reclamation Plan--Introductory paragraph,

program goals and objectives, and eligible projects;

Chairman's Letter of Designation and Hopi Tribe Resolution--

Designation of Tribal agency authorized to administer approved plan;

Opinion of Legal Counsel--Authority of designated agency to

conduct the AMLR program in accordance with the requirements of

Title IV of SMCRA;

Section I, A(1)--Protection of the health, safety, and general

welfare of members of the Hopi Tribe;

Section I, A(2)--Restoration of land and water resources;

Section I, B--Designation of administrative authority;

Section I, C--Reclamation priorities;

Sections I, C (4) and (5)--Deletion of existing C(4) and

recodification of C(5) and (6) as C(4) and (5);

Section I, C--Deletion of allocation of funds provisions;

Section II, A--[Lack of] Limited liability provision for coal;

Section II, A(1)--Abatement of any new coal problems that arise

after the effective date of the certification of completion of coal

reclamation;

Sections II, A(1) (a) through (f)--Eligible coal lands and

water;

Section II, (A)(1)(g)--Contractor responsibility;

Section II, A(1)(h)--Reports;

Sections II, B(1) (a) and (b)--Eligible lands and water

subsequent to certification;

Sections II, B(1)(c), (d) (i) and (iii), (e), and (g)--

Reclamation priorities for noncoal program;

Section II, B(1)(f)--Need for activities or construction of

specific public facilities related to the coal or mineral industry

on Tribal lands impacted by coal or mineral development;

Section II, G--Reports;

Sections II, C through F--Exclusion of certain noncoal

reclamation sites, noncoal land acquisition authority, limited

liability, and contractor responsibility;

[[Page 17840]]

Section II, H and [deletion of] ranking and selection of noncoal

reclamation projects and Table I, Comprehensive/Problem Evaluation

Matrix--Description of needs, proposed construction and activities;

Part III--Coordination of Tribal AML programs with other

programs;

Section IV, A(1)--Acquisition of lands by the Hopi Tribe;

Section IV, A(2)(a)(i)--Appraisals;

Section IV, A(2)(b)--Lands eligible for acquisition;

Sections IV, A(2) (c), (d), (e), B(2), and C--Land acquisition,

management, and disposal;

Section IV, B(1)--Management of acquired lands;

Part V and Figures 1 and 2--Reclamation on private land;

Section VI, A, B, and C--Rights of entry;

Deletion of section VI, C--Entry for emergency reclamation;

Part VII--Hopi Department of Natural Resources (DNR) policy on

public participation;

Part VIII and Figure 4--Organization of the Hopi Tribe;

Part IX--Personnel staffing policies;

Part X--Purchasing and procurement;

Part XI--Management accounting;

[Deletion of] sections 884.13(e) (1), (2), and (3)--Purpose of

Hopi Tribe plan and criteria for ranking and identifying projects;

Part XII--Economic conditions of the Hopi Reservation;

Part XIII--Flora and fauna;

Appendices 1 through 12--Addition of cover pages;

Appendix 1--Constitution and By-Laws of the Hopi Tribe, as

amended;

Appendix 7--Title of the appendix;

Memorandum from the Assistant General Counsel/Legislation

Counsel to DNR dated May 18, 1995--Elimination of Title IV from the

draft Hopi Code Mining Ordinance;

Hopi Tribal Council Resolution H-134-89, adopted August 29,

1989; and

Memorandum from the Hopi Tribe Office of Financial Management to

DNR dated September 7, 1995--Purchasing procedures.

3. Section 756.18 is amended by adding paragraphs (a) through (h)

to read as follows:

Sec. 756.18 Required amendments to the Hopi Tribe's Abandoned Mine

Land Reclamation Plan.

* * * * *

(a) By June 24, 1996, the Hopi Tribe shall revise the introductory

paragraph at Part I, or otherwise revise the purpose of the Hopi Tribe

plan, to provide separate and distinct provisions for coal and noncoal

reclamation activities to be consistent with sections 403 and 411 of

SMCRA and in compliance with the Federal regulations at 30 CFR Parts

874 and 875 in order to properly reflect the objectives and priorities

for expenditures of monies from the abandoned mine land fund.

(b) By June 24, 1996, the Hopi Tribe shall delete section I, A(3)

and recodify any subsequent paragraphs accordingly, or otherwise revise

the Hopi Tribe plan, to provide appropriate provisions subsequent to

the certification of completion of coal reclamation.

(c) By June 24, 1996, the Hopi Tribe shall revise Section I, A(4),

or otherwise revise the Hopi Tribe plan, to require the same objectives

and priorities concerning public facilities as set forth at section

411(e) of SMCRA.

(d) By June 24, 1996, the Hopi Tribe shall revise Section II, A(1),

or otherwise revise the Hopi Tribe plan, to require that any coal

reclamation activities subsequent to certification of completion of

coal reclamation are subject to the provisions of sections 401 through

410 of SMCRA.

(e) By June 24, 1996, the Hopi Tribe shall revise Section II,

B(1)(d)(ii) by deleting the word ``property'' for priority 2 noncoal

reclamation, or otherwise revise the Hopi Tribe plan to provide for the

protection of public health, safety, and general welfare from the

adverse effects of mineral mining and processing practices.

(f) By June 24, 1996, the Hopi Tribe shall revise Section IV, A(1)

by deleting the word ``coal'' from the phrase ``coal refuse thereon,''

or otherwise revise the Hopi Tribe plan to ensure that lands eligible

for acquisition include those on which refuse from both coal and

noncoal mining practices are located.

(g) By June 24, 1996, the Hopi Tribe shall revise Section IV, B(1)

by reinstating the phrase ``may be used, pending.''

(h) By June 24, 1996, the Hopi Tribe shall revise the Hopi Tribe

plan by reinstating Section 884.13(f)(2), or otherwise modify its plan

to include information concerning significant esthetic, historic or

cultural, and recreational values.

[FR Doc. 96-9938 Filed 4-22-96; 8:45 am]

BILLING CODE 4310-05-M