Proposed Rule2025-10999
Rescission of the “Ten-Day Notices and Corrective Action for State Regulatory Program Issues” Rule, Issued April 9, 2024
Primary source
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Published
June 16, 2025
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
The Office of Surface Mining Reclamation and Enforcement (OSMRE) is proposing to rescind the "Ten-Day Notices and Corrective Action for State Regulatory Program Issues" Rule adopted on April 9, 2024. We are undertaking this change to align the regulations with the single, best meaning of the statutory language in the Surface Mining Control and Reclamation Act of 1977 (SMCRA). This proposed rule would streamline the process for OSMRE's coordination with State regulatory authorities to minimize duplication of efforts in the administration of SMCRA and appropriately recognize that State regulatory authorities are the primary regulatory authorities of non-Federal, non-Indian lands within their borders. We solicit comment on all aspects of this proposed rule.
Full Text
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<title>Federal Register, Volume 90 Issue 114 (Monday, June 16, 2025)</title>
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[Federal Register Volume 90, Number 114 (Monday, June 16, 2025)]
[Proposed Rules]
[Pages 25174-25180]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-10999]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 733, 842
[Docket No. OSM-2025-0018; S1D1S SS08011000 SX064A000 256S180110; S2D2S
SS08011000 SX064A000 25XS501520]
RIN 1029-AC89
Rescission of the ``Ten-Day Notices and Corrective Action for
State Regulatory Program Issues'' Rule, Issued April 9, 2024
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement
(OSMRE) is proposing to rescind the ``Ten-Day Notices and Corrective
Action for State Regulatory Program Issues'' Rule adopted on April 9,
2024. We are undertaking this change to align the regulations with the
single, best meaning of the statutory language in the Surface Mining
Control and Reclamation Act of 1977 (SMCRA). This proposed rule would
streamline the process for OSMRE's coordination with State regulatory
authorities to minimize duplication of efforts in the administration of
SMCRA and appropriately recognize that State regulatory authorities are
the primary regulatory authorities of non-Federal, non-Indian lands
within their borders. We solicit comment on all aspects of this
proposed rule.
DATES: OSMRE must receive your comments on this proposed rule on or
before July 16, 2025. OSMRE is not obligated to consider any comments
received after this date in making its decision on the final rule.
ADDRESSES: You may submit comments by one of the following methods:
Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a> and search for Docket Number OSM-2025-0018. Follow
the instructions at this website.
[[Page 25175]]
By hard copy: Submit by U.S. mail to the Division of Regulatory
Support, Office of Surface Mining Reclamation and Enforcement,
Department of the Interior, Attn: James Tyree, 1849 C St. NW, Mail Stop
4557, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: James Tyree, Chief, Division of
Regulatory Support, (202) 208-4479, <a href="/cdn-cgi/l/email-protection#7319070a011616331c001e01165d141c05"><span class="__cf_email__" data-cfemail="ea809e93988f8faa859987988fc48d859c">[email protected]</span></a>. Individuals in
the United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION: SMCRA allows states with federally approved
programs to regulate surface coal mining and reclamation operations on
non-Federal, non-Indian lands within their borders. See, e.g., 30
U.S.C. 1253. Once a State program is approved, ``the State's laws and
regulations implementing the program become operative for the
regulation of surface coal mining, and the State officials administer
the program, giving the State `exclusive jurisdiction over the
regulation of surface coal mining' within its borders . . . .'' Bragg
v. W. Va. Coal Ass'n, 248 F.3d 275, 288 (4th Cir. 2001) (internal
citations omitted). After a state receives primary jurisdiction
(``primacy'') to administer SMCRA, the statute provides the Secretary
of the Interior (the Secretary) with oversight of the State regulatory
programs and limited ongoing enforcement authority in two separate
scenarios: (1) when the Secretary has reason to believe there have been
violations of SMCRA and; (2) where the Secretary has reason to believe
that violations of an approved State program are due to a State
regulatory authority not properly enforcing its State program. 30
U.S.C. 1271(a) and (b).
In the first scenario, for a non-imminent harm situation, the
Secretary can issue a notice, known as a ``ten-day notice'' (TDN), to a
State regulatory authority if the Secretary has a ``reason to believe''
that ``any person is in violation of any requirement of [SMCRA].'' Id.
Sec. 1271(a) (emphasis added). SMCRA directs the Secretary to
determine whether there is a potential violation ``on the basis of any
information available to him.'' Id. (emphasis added). If so, SMCRA
provides that the Secretary, acting through the Director of OSMRE, will
issue a TDN to the State regulatory authority. A TDN gives the State
regulatory authority ten days to respond to OSMRE to show that it
either has taken ``appropriate action'' to ``cause said violation to be
corrected'' or to show ``good cause'' for not doing so. Id. SMCRA
directs the Secretary to then determine whether there is a violation
``on the basis of any information available to him.'' Id. (emphasis
added). Under certain circumstances, such as if the State regulatory
authority fails to respond in ten days or if OSMRE disagrees with the
State's response to the TDN, the Secretary is authorized to conduct a
Federal inspection. For imminent harm situations, the TDN process is
waived when there is adequate proof of an imminent harm and the State's
failure to take action, and OSMRE would conduct a Federal inspection.
Id.
In the second scenario, SMCRA provides a separate enforcement
process if the Secretary suspects a violation of an approved State
program is due to a failure on the part of the State to properly
enforce its approved program. Id. Sec. 1271(b). Here, the Secretary
must issue ``public notice'' and ``hold a hearing thereon in the State
within thirty days of such notice.'' Id. If the Secretary finds that
there are violations stemming from the State's failure to enforce its
own State program effectively and the State ``has not adequately
demonstrated its capability and intent to enforce such State program,''
the Secretary must take over the enforcement and issuance of permits.
Id.; see also 30 U.S.C. 1254(a).
``Reason to Believe'' Determination
Before the 2024 Rule, the Department's implementing regulations
regarding the information that the Secretary can consider when
determining whether a potential violation exists mirrored the statutory
language providing for consideration of ``any information available to
him,'' 30 U.S.C. 1271(a)(1); the Secretary could determine whether
there was a violation by looking to ``any information readily available
to him or her, from any source[.]'' 30 CFR 842.11(b)(1)(i) (2021
version). Despite SMCRA's direction to the Secretary to base his
determination on ``any information available to him,'' the 2024 Rule
artificially limited the types of information that OSMRE can consider
before issuing a TDN to: (i) ``information received from a citizen
complaint''; (ii) ``information available in OSMRE files at the time
that OSMRE is notified of the possible violation''; (iii) ``and
publicly available electronic information.'' 30 CFR 842.11(b)(1)(i).
The 2024 Rule made similar changes to Sec. Sec. 842.11(b)(2) and
842.12(a). As such, the 2024 Rule narrowed OSMRE's investigatory
sources in a manner that is inconsistent with the best reading of
SMCRA, including by, for example, directing OSMRE to ignore other
information that may be readily available from State regulatory
authorities, who have primacy, or operators. See Loper Bright
Enterprises v. Raimondo, 603 U.S. 369 (2024). Therefore, we propose to
return to the language that was in the rule prior to the 2024 Rule and
that better implements the best reading of SMCRA.
Definition of ``Citizen Complaint'' and ``Ten-Day Notice''
We propose to return the text of 30 CFR 842.11(b)(1)(i),
842.11(b)(2), and 842.12(a) to the text that existed before the 2024
Rule, which would, in part, remove references to the phrase ``citizen
complaint'' across these subsections. The 2024 Rule added an
unnecessary definition of ``citizen complaint'' at 30 CFR 842.5, a term
that is not used anywhere in SMCRA. See 30 U.S.C. 1271(h)(1). The 2024
Rule then used the filing of ``citizen complaint[s]'' to short-circuit
the longstanding requirement that citizens request a Federal inspection
by modifying the regulations so that ``[a]ll citizen complaints [are]
considered as requests for a Federal inspection.'' 30 CFR 842.11(b)(2),
842.12(a). When the automatic treatment of all citizen complaints as
requests for a Federal inspection is read together with the 2024 Rule's
restrictions on the types of information that OSMRE can consider when
deciding whether to issue a TDN, the 2024 Rule violates principles of
cooperative federalism and is inconsistent with the statutory structure
of SMCRA. For example, SMCRA gives States with approved programs
primacy and assigns OSMRE an oversight role with limited enforcement
authority to ensure SMCRA compliance, but the 2024 Rule pushes OSMRE to
conduct unnecessary inspections while disallowing OSMRE from
considering all available information when deciding whether it has
reason to believe a possible violation may exist.
Similarly, reverting the text of 30 CFR 842.12(a) to the language
that existed before the 2024 Rule will reestablish the requirement that
a person requesting a Federal inspection notify both the OSMRE
authorized representative and the State regulatory authority, if any,
which better aligns the regulations with the statutory structure of
SMCRA and the goals of cooperative federalism. It also ensures that
both OSMRE and the
[[Page 25176]]
State regulatory authority have the opportunity to understand and, if
appropriate, address the concerns raised in a complaint.
Furthermore, and in line with this Administration's deregulatory
agenda, we propose rescinding the newly created ``ten-day notice''
definition because it is unnecessary. As the 2024 Rule explains,
``SMCRA section 521(a)(1) [ ] provides that, after OSMRE notifies [a
State regulatory authority] of a possible violation, the State must
take `appropriate action' or `show good cause' for not doing so `within
ten days.' '' 89 FR 24714, 24716. All regulated entities understand
that this is the ten-day notice process. A definition is not necessary.
``Person[s]'' Subject to a TDN
The 2024 Rule also found that a State regulatory authority can be a
``person'' in a manner that is inconsistent with SMCRA. 30 U.S.C.
1271(a) (emphasis added). The preamble to the 2024 Rule also included a
statement that OSMRE would treat a State regulatory authority as a
person for purposes of finding a potential violation that warranted
issuing a TDN to the State. 89 FR at 24716. This direction goes beyond
the text of SMCRA, which excludes a State regulatory authority from its
definition of ``person.'' SMCRA defines ``person'' as an ``individual,
partnership, association, society, joint stock company, firm, company,
corporation, or other business organization,'' and separately defines
``State regulatory authority'' as ``the department or agency in each
State which has primary responsibility at the State level for
administering this Act.'' Compare 30 U.S.C. 1291(26) with 1291(19).
Properly understood, a State regulatory authority can only be a
``person'' that could ``be in violation of any requirement of the Act''
in order to trigger a TDN if the State is acting as a business
organization of some type, such as a permit holder operating a surface
coal mining operation. Because the 2024 Rule's direction in the
preamble announced its intention to treat a State regulatory authority
as a ``person'' for purposes of the TDN process, which is not in
accordance with the best reading of SMCRA, OSMRE is proposing to return
to its prior understanding of who can be found in violation of the
SMCRA and its implementing regulations for purposes of a TDN. See Loper
Bright, 603 U.S. 369.
Types of TDN Violations
The 2024 Rule sought to ensure that ``all possible violations,
except those that create an imminent harm,'' would be subject to the
TDN process, including those that result from a State regulatory
authority issuing a defective permit, which has commonly been called a
permit defect. 89 FR at 24716. As mentioned, section 521(a) of SMCRA
says that the Secretary can issue a TDN when ``any person is in
violation of any requirement of this Act.'' 30 U.S.C. 1271(a). And as
noted above, SMCRA defines ``person'' as an ``individual, partnership,
association, society, joint stock company, firm, company, corporation,
or other business organization,'' 30 U.S.C. 1291(19), and that does not
include a State regulatory authority, unless it is itself acting as a
business organization. Consequently, the TDN process is not a
permissible way under SMCRA for OSMRE to review the actions of a State
regulatory authority. Instead, section 521(b) of SMCRA creates a
separate enforcement process for programmatic violations where ``the
Secretary has reason to believe that the violations of all or any part
of an approved State program result from a failure of the State to
enforce such State program or any part thereof effectively.'' 30 U.S.C.
1271(b) (emphasis added). The latter enforcement mechanism exists for
circumstances where, for example, a State regulatory authority uses its
approved State program to issue defective permits. To the extent that
the 2024 Rule subjected a State regulatory authority to the TDN process
for ``violations of all or any part of an approved State program,'' it
was inconsistent with SMCRA and offends principles of cooperative
federalism by funneling such violations into the TDN process by
allowing OSMRE to use that process as an avenue for regulatory
oversight of a State regulatory authority that is not contemplated for
such violations in SMCRA. If it were true that programmatic violations
were subject to the TDN process laid out in 30 U.S.C. 1271(a), it would
render 30 U.S.C. 1271(b) duplicative. And it is a fundamental principle
of statutory interpretation to assume every word or subsection in a
statute has a purpose and should not be rendered superfluous. This
interpretation also accords with OSMRE's interpretation of this issue
over the years. See, e.g., Letter from Assistant Secretary Rebecca
Watson to Joseph M. Lovett, Appalachian Center for the Economy and the
Environment (Oct. 21, 2005). This proposed rule would therefore restore
SMCRA's statutory dichotomy between OSMRE's oversight of violations
through the TDN process as reflected in 30 CFR 842.12 and OSMRE's
oversight of programmatic violations through a separate review process
for approved State programs, as reflected in 30 CFR part 733.
Time Frames
In the 2024 Rule, OSMRE created deadlines for itself to develop and
approve an action plan within 60 days of identifying a State regulatory
program issue and instituted a 10-business-day deadline following
identification of a State regulatory program issue for OSMRE and the
State regulatory authority to develop interim remedial measures to
abate the existing issue. 30 CFR 733.12(b). The Department does not
normally regulate its bureaus and offices in its regulations, and it is
unnecessary and arbitrary to do so here. Depending on the nature and
extent of the State regulatory program issue identified and the other
competing agency priorities, it may take more or less time than 60 days
to develop an action plan or the 10 days to develop interim remedial
measures in consultation with the State regulatory authority. Thus, the
timeframes are both too restrictive, because some of the State
regulatory program issues could be of a type that those timeframes are
not long enough to take the necessary action, and too generous, because
some State regulatory program issues should not take that long to
develop an action plan or develop interim remedial measures, yet
Parkinson's Law, the theory that work expands to fill the time
available for its completion, suggests that OSMRE and the State will
use all of the time allotted. In addition, these administrative
deadlines are not necessary for, and might even inhibit, achieving the
end-goal of these processes, which is to arrive at a thoughtful and
durable resolution of a State regulatory program issue.
Therefore, we are instead proposing to return to instructing OSMRE
to ``take action to make sure the identified State regulatory program
issue is corrected as soon as possible . . .'' and ``ensure that the
State regulatory authority corrects a State regulatory program issue in
a timely and effective manner,'' and to give a State regulatory
authority the discretion to resolve a State regulatory program issue
without an action plan, unless the Director determines that resolving
the issue is likely to take more than 180 days or result in a violation
of the approved State program. This process allows for greater
coordination and better flexibility in how OSMRE and the State
regulatory authority address the State regulatory program issue. Years
of administering SMCRA and this Administration's deregulatory agenda
counsel us to decrease the number of administrative deadlines and
[[Page 25177]]
prescriptive practices in regulations that are not mandated by statute
and that could stifle productive, informal discussion and resolution
between OSMRE and State regulatory authorities of State program issues.
Similar Possible Violations
The 2024 Rule codified the longstanding practice of OSMRE issuing a
single TDN for a group of substantively similar possible violations. In
line with this Administration's deregulatory agenda, we do not believe
it is necessary to include this longstanding practice in the
regulations because nothing in SMCRA or the pre-2024 regulations
prohibits OSMRE from grouping similar violations into a single TDN if
it is more effective to do so, even without a regulatory provision.
Therefore, we are proposing to remove this codification and return the
regulation to the version that was in place before the 2024 Rule.
Citizen Justification for Possible Violation
The 2024 Rule removed regulatory language from 30 CFR 842.12(a)
that required a person who requests a Federal inspection under Sec.
842.11(b) to include in his or her statement ``the basis for the
person's assertion that the State regulatory authority has not taken
action with respect to the possible violation.'' The 2024 Rule preamble
mischaracterized this pre-existing language, stating that the person
seeking a Federal inspection ``should not need to state their
allegation in statutory or regulatory language.'' 89 FR at 24718. The
regulatory language we are proposing to restore does not require the
person who is requesting a Federal inspection to provide citations to
statutes or regulations but merely to provide the basis for the
assertion that the State regulatory authority has not taken action with
respect to a possible violation. This is not a high bar. 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 determine whether there is reason to believe that a
violation exists. The preamble to the 2020 TDN Rule affirms that OSMRE
``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.'' 85 FR 75150, 75160. For these
reasons, the Department is proposing in revised Sec. 842.12(a) to
require the citizen to include in his or her complaint the basis for
the assertion that the State regulatory authority has not taken action
with respect to the possible violation.
Action Plans as Appropriate Action
If OSMRE issues a TDN, the State regulatory authority must respond
within ten days by either taking ``appropriate action'' to cause the
possible violation to be corrected or showing ``good cause'' for not
taking action. The 2024 TDN rule removed corrective action plans
associated with a State regulatory program issue as a possible
``appropriate action'' in response to a TDN, asserting that an action
plan to remedy a state regulatory program issue does not remedy
violations. However, that is a misstatement. The action plan process in
Sec. 733.12 that was in place before the 2024 Rule was not a vehicle
to avoid Federal enforcement or avoid the correction of any violation;
instead, the action plan process was and is a tool for OSMRE, in
collaboration with a State regulatory authority, to address State
regulatory program issues promptly, which would include the correction
of any violations of SMCRA on any permit identified. Thus, an action
plan ``will cause said violation to be corrected'' so the development
of an action plan is better characterized as ``appropriate action.''
This is also consistent with the fact that OSMRE has historically
allowed programmatic resolution of State regulatory program issues,
such as implementation of remedies under 30 CFR part 732, to constitute
``appropriate action'' in a given situation. To avoid confusion or
uncertainty for the regulated community, State regulatory authorities,
and the public at large, the proposed rule in Sec. 733.12 seeks to
remove ambiguity and definitively states that ``appropriate action''
may include corrective action to resolve State regulatory program
issues.
Conclusion
Consistent with Section 4.b. of Secretary's Order 3418, OSMRE has
determined that the foregoing reasons together justify rescission of
the 2024 Rule and a return to the regulations that were in effect
immediately before the promulgation of that rule. Regardless of any
benefits of that rule, OSMRE must not maintain regulations that are
inconsistent with the statutory authority. See Dep't of Homeland Sec.
v. Regents of the Univ. of California, 591 U.S. 1, 32 (2020). Moreover,
regardless of the inconsistency, OSMRE has no interest in maintaining a
rule that subjects a State regulatory authority to more requirements
than are mandated by statute. To do otherwise would be against the
cooperative federalism structure of SMCRA.
To the extent there is any uncertainty about the costs and benefits
of the 2024 Rule, it is the policy of OSMRE to err on the side of
deregulation. We therefore propose to rescind the 2024 Rule in full,
revert to the pre-existing regulations, and seek comment on that
proposal. We especially seek comment on whether there are any portions
of the 2024 Rule that are consistent with the best reading of the
statute and would be beneficial to retain, especially the 2024's
language on the Similar Possible Violations mentioned above, or whether
any portions of the preexisting regulations could be improved to better
meet this Administration's objectives as set out in an Executive Orders
(E.O.), such as E.O. 14154 ``Unleashing American Energy,'' E.O. 14219
``Ensuring Lawful Governance and Implementing the President's
`Department of Government Efficiency' Deregulatory Initiative'' (Feb.
19, 2025), and the Presidential Memorandum ``Directing the Repeal of
Unlawful Regulations'' (Apr. 9, 2025).
Procedural Determinations
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule does not result in a taking of private property or
otherwise have regulatory takings implications under E.O. 12630. The
rule rescinds a regulation that OSMRE determined does not represent the
best reading of SMCRA and is inconsistent with principles of
cooperative federalism but does not impact any property rights;
therefore, the rule will not result in private property being taken for
public use without just compensation. A takings implication assessment
is not required.
Executive Order 12866--Regulatory Planning and Review and Executive
Order 13563--Improving Regulation and Regulatory Review
E.O. 12866 provides that the Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget (OMB) will review
all significant rules. OIRA has determined that this rule is not
significant.
E.O. 13563 reaffirms the principles of E.O. 12866, while calling
for improvements in the Nation's regulatory system to promote
predictability, reduce uncertainty, and use the best, most innovative,
and least burdensome tools for achieving regulatory ends. E.O. 13563
directs agencies to consider
[[Page 25178]]
regulatory approaches that reduce burdens and maintain flexibility and
freedom of choice for the public where these approaches are relevant,
feasible, and consistent with regulatory objectives. E.O. 13563
emphasizes further that agencies must base regulations on the best
available science and that the rulemaking process must allow for public
participation and an open exchange of ideas. The Department developed
this rule in a manner consistent with these requirements.
Executive Order 12988--Civil Justice Reform
This proposed rule complies with the requirements of E.O. 12988.
Among other things, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation;
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Executive Order 13132--Federalism
Under the criteria of section 1 of E.O. 13132, this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. While revising the existing
regulations governing the TDN process would have a direct effect on the
States and the Federal Government's relationship with the States, this
effect would not be significant, as it would neither impose substantial
unreimbursed compliance costs on States nor preempt State law.
Furthermore, this final rule does not have a significant effect on the
distribution of power and responsibilities among the various levels of
government. The final rule would not significantly increase burdens on
State regulatory authorities to address and resolve underlying issues.
As such, a federalism summary impact statement is not required.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and Tribal sovereignty. OSMRE has evaluated this rule under
the Department's consultation policy and under the criteria in E.O.
13175 and determined that it does not have substantial direct effects
on Federally recognized Tribes and that consultation under the
Department's Tribal consultation policy is not required. Moreover, no
Tribes have yet achieved primacy. Thus, this rule will not impact the
regulation of surface coal mining operations on Indian lands as that
term is defined under SMCRA.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This direct final rule is not a significant energy action as
defined in E.O. 13211. Therefore, a Statement of Energy Effects is not
required.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4321 et seq., is not required because the rule is covered by a
categorical exclusion. Specifically, OSMRE has determined that the
final rule is administrative or procedural in nature in accordance with
the Department of the Interior's NEPA regulations at 43 CFR 46.210(i).
OSMRE has also determined that the final rule does not involve any of
the extraordinary circumstances listed in 43 CFR 46.215 that would
require further analysis under NEPA.
Paperwork Reduction Act
This rule does not impose any new information collection burden
under the Paperwork Reduction Act. OMB has previously approved the
information collection activities contained in the existing regulations
and has assigned OMB control number 1029-0118. This rule does not
impose an information collection burden because OSMRE is not making any
changes to the information collection requirements. OSMRE estimates
that the number of burden hours associated with TDN processing will
stay the same as what is currently authorized by OMB control number
1029-0118.
Regulatory Flexibility Act
OSMRE certifies 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.). OSMRE previously evaluated the
impact of the regulatory changes at the time that the 2020 Rule was
promulgated and determined that the rule changes would not induce,
cause, or create any unnecessary burdens on the public, State
regulatory authorities, or small businesses; would not discourage
innovation or entrepreneurial enterprises; and would be consistent with
SMCRA, from which the regulations draw their implementing authority.
Congressional Review Act
This rule is not a major rule under the Congressional Review Act, 5
U.S.C. 804(2). Specifically, the direct final rule: (a) will not have
an annual effect on the economy of $100 million or more; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector, of more than $100 million
per year. The rule does not have a significant or unique effect on
State, local, or Tribal governments, or the private sector. The rule
merely revises the Federal regulations to remove an obsolete provision
that is no longer used. Therefore, a statement containing the
information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
et seq.) is not required.
List of Subjects
30 CFR Part 733
Intergovernmental relations, Surface mining, Underground mining.
30 CFR Part 842
Law enforcement, Surface mining, Underground mining.
Adam G. Suess,
Acting Assistant Secretary, Land and Minerals Management.
For the reasons stated in the preamble, the Department of the
Interior proposes to revise 30 CFR parts 733 and 842 to read as as
follows:
PART 733--EARLY IDENTIFICATION OF CORRECTIVE ACTION, MAINTENANCE OF
STATE PROGRAMS, PROCEDURES FOR SUBSTITUTING FEDERAL ENFORCEMENT OF
STATE PROGRAMS, AND WITHDRAWING APPROVAL OF STATE PROGRAMS
0
1. The authority citation for Part 733 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
[[Page 25179]]
0
2. Revise Sec. 733.5 to read as follows:
Sec. 733.5 Definitions.
As used in this part, the following terms have the specified
meanings:
Action plan means a detailed schedule OSMRE prepares to identify
specific requirements a State regulatory authority must achieve in a
timely manner to resolve State regulatory program issues identified
during oversight of State regulatory programs.
State regulatory program issue means an issue OSMRE identifies
during oversight of a State or Tribal regulatory program that could
result in a State regulatory authority not effectively implementing,
administering, enforcing, or maintaining all or any portion of its
State regulatory program, including instances when a State regulatory
authority has not adopted and implemented program amendments that are
required under 30 CFR 732.17 and 30 CFR subchapter T, and issues
related to the requirement in section 510(b) of the Act that a State
regulatory authority must not approve a permit or revision to a permit
unless the State regulatory authority finds that the application is
accurate and complete and that the application is in compliance with
all requirements of the Act and the State regulatory program.
0
3. Revise Sec. 733.12 to read as follows:
Sec. 733.12 Early identification and corrective action to address
State regulatory program issues.
(a) When the Director identifies a State regulatory program issue,
he or she should take action to make sure the identified State
regulatory program issue is corrected as soon as possible in order to
ensure that it does not escalate into become an issue that would give
the Director reason to believe that the State regulatory authority is
not effectively implementing, administering, enforcing, or maintaining
all or a portion of its State regulatory program.
(1) The Director may become aware of State regulatory program
issues through oversight of State regulatory programs or as a result of
information received from any source, including a citizen complaint.
(2) If the Director concludes that the State regulatory authority
is not effectively implementing, administering, enforcing, or
maintaining all or a portion of its State regulatory program, the
Director may substitute Federal enforcement of a State regulatory
program or withdraw approval of a State regulatory program as provided
in this part.
(b) The Director or his or her delegate may employ any number of
compliance strategies to ensure that the State regulatory authority
corrects a State regulatory program issue in a timely and effective
manner. However, if the Director or delegate does not expect that the
State regulatory authority will resolve the State regulatory program
issue within 180 days after identification or that it is likely to
result in a violation of the approved State program, then the Director
or delegate will develop and institute an action plan.
(1) An action plan will be written with specificity to identify the
State regulatory program issue and an effective mechanism for timely
correction.
(2) An action plan will identify any necessary technical or other
assistance that the Director or his or her designee can provide and
remedial measures that a State regulatory authority must take
immediately.
(3) An action plan must also include:
(i) An action plan identification number;
(ii) A concise title and description of the State regulatory
program issue;
(iii) Explicit criteria for establishing when complete resolution
will be achieved;
(iv) Explicit and orderly sequence of actions the State regulatory
authority must take to remedy the problem;
(v) A schedule for completion of each action in the sequence; and
(vi) A clear explanation that if the action plan, upon completion,
does not result in correction of the State regulatory program issue,
the provisions of Sec. 733.13 may be triggered.
(c) All identified State regulatory program issues and any
associated action plan must be tracked and reported in the applicable
State regulatory authority's Annual Evaluation report. These State
regulatory authority Annual Evaluation reports will be accessible
through OSMRE's website and at the applicable OSMRE office. Within each
report, benchmarks identifying progress related to resolution of the
State regulatory program issue must be documented.
(d) Nothing in this section prevents a State regulatory authority
from taking direct enforcement action in accordance with its State
regulatory program, or OSMRE from taking appropriate oversight
enforcement action, in the event that a previously identified State
regulatory program issue results in or may imminently result in a
violation of the approved State program.
PART 842--FEDERAL INSPECTIONS AND MONITORING
0
1. The authority citation for part 842 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 842.5 [Removed and reserved]
0
4. Remove and reserve Sec. 842.5.
0
5. Revise Sec. 842.11(b) to read as follows:
Sec. 842.11 Federal inspections and monitoring.
* * * * *
(b)(1) An authorized representative of the Secretary must
immediately conduct a Federal inspection:
(i) When the authorized representative has reason to believe on the
basis of any information readily available to him or her, from any
source, including any information a citizen complainant or the relevant
State regulatory authority submits (other than information resulting
from a previous Federal inspection), that there exists a violation of
the Act, this chapter, the State regulatory program, or any condition
of a permit or an exploration approval, or that there exists any
condition, practice, or violation that creates an imminent danger to
the health or safety of the public or is causing or could reasonably be
expected to cause a significant, imminent environmental harm to land,
air, or water resources and--
(ii)(A) There is no State regulatory authority or the Office is
enforcing the State regulatory program under section 504(b) or 521(b)
of the Act and part 733 of this chapter; or
(B)(1) The authorized representative has notified the State
regulatory authority of the possible violation and more than ten days
have passed since notification, and the State regulatory authority has
not taken appropriate action to cause the violation to be corrected or
to show good cause for not doing so, or the State regulatory authority
has not provided the authorized representative with a response. After
receiving a response from the State regulatory authority, but before a
Federal inspection, the authorized representative will determine in
writing whether the standards for appropriate action or good cause have
been satisfied. A State regulatory authority's failure to respond
within ten days does not prevent the authorized representative from
making a determination, and will constitute a waiver of the State
regulatory authority's right to request review under paragraph
(b)(1)(iii) of this section.
[[Page 25180]]
(2) For purposes of this subchapter, an action or response by a
State regulatory authority that is not arbitrary, capricious, or an
abuse of discretion under the state program shall be considered
``appropriate action'' to cause a violation to be corrected or ``good
cause'' for failure to do so.
(3) Appropriate action includes enforcement or other action
authorized under the approved State program to cause the violation to
be corrected. Appropriate action may include OSMRE and the State
regulatory authority immediately and jointly initiating steps to
implement corrective action to resolve any issue that the authorized
representative and applicable Field Office Director identify as a State
regulatory program issue, as defined in 30 CFR part 733.
(4) Good cause includes:
(i) The possible violation does not exist under the State
regulatory program;
(ii) The State regulatory authority has initiated an investigation
into a possible violation and as a result has determined that it
requires a reasonable, specified additional amount of time to determine
whether a violation exists. When analyzing the State regulatory
authority's response for good cause, the authorized representative has
discretion to determine how long the State regulatory authority should
reasonably be given to complete its investigation of the possible
violation and will communicate to the State regulatory authority the
date by which the investigation must be completed. At the conclusion of
the specified additional time, the authorized representative will re-
evaluate the State regulatory authority's response including any
additional information provided;
(iii) The State regulatory authority demonstrates that it lacks
jurisdiction over the possible violation under the State regulatory
program;
(iv) The State regulatory authority demonstrates that it is
precluded from taking action on the possible violation because an
administrative review body or court of competent jurisdiction has
issued an order concluding that the possible violation does not exist
or that the temporary relief standards of the State regulatory program
counterparts to section 525(c) or 526(c) of the Act have been
satisfied; or
(v) Regarding abandoned sites, as defined in 30 CFR 840.11(g), the
State regulatory authority is diligently pursuing or has exhausted all
appropriate enforcement provisions of the State regulatory program.
(vi) Regarding abandoned sites, as defined in 30 CFR 840.11(g), the
State regulatory authority is diligently pursuing or has exhausted all
appropriate enforcement provisions of the State regulatory program.
(C) The person supplying the information supplies adequate proof
that an imminent danger to the public health and safety or a
significant, imminent environmental harm to land, air or water
resources exists and that the State regulatory authority has failed to
take appropriate action.
(iii)(A) The authorized representative shall immediately notify the
state regulatory authority in writing when in response to a ten-day
notice the state regulatory authority fails to take appropriate action
to cause a violation to be corrected or to show good cause for such
failure. If the State regulatory authority disagrees with the
authorized representative's written determination, it may file a
request, in writing, for informal review of that written determination
by the Deputy Director. Such a request for informal review may be
submitted to the appropriate OSMRE field office or to the office of the
Deputy Director in Washington, DC. The request must be received by
OSMRE within 5 days from receipt of OSMRE's written determination.
(B) Unless a cessation order is required under Sec. 843.11, or
unless the state regulatory authority has failed to respond to the ten-
day notice, no Federal inspection action shall be taken or notice of
violation issued regarding the ten-day notice until the time to request
informal review as provided in Sec. 842.11(b)(1)(iii)(A) has expired
or, if informal review has been requested, until the Deputy Director
has completed such review.
(C) After reviewing the written determination of the authorized
representative and the request for informal review submitted by the
State regulatory authority, the Deputy Director shall, within 15 days,
render a decision on the request for informal review. He shall affirm,
reverse, or modify the written determination of the authorized
representative. Should the Deputy Director decide that the State
regulatory authority did not take appropriate action or show good
cause, he shall immediately order a Federal inspection or reinspection.
The Deputy Director shall provide to the State regulatory authority and
to the permittee a written explanation of his decision, and if the ten-
day notice resulted from a request for a Federal inspection under Sec.
842.12 of this part, he shall send written notification of his decision
to the person who made the request.
(b)(2) An authorized representative will have reason to believe
that a violation, condition, or practice referred to in paragraph
(b)(1)(i) of this section exists if the facts that a complainant
alleges, or facts that are otherwise known to the authorized
representative, constitute simple and effective documentation of the
alleged violation, condition, or practice. In making this
determination, the authorized representative will consider any
information readily available to him or her, from any source, including
any information a citizen complainant or the relevant State regulatory
authority submits to the authorized representative.
* * * * *
0
6. Revise Sec. 842.12(a) to read as follows:
Sec. 842.12 Requests for Federal inspections.
(a) Any person may request a Federal inspection under Sec.
842.11(b) by providing to an authorized representative a signed,
written statement (or an oral report followed by a signed written
statement) setting forth information that, along with any other readily
available information, may give the authorized representative reason to
believe that a violation, condition, or practice referred to in Sec.
842.11(b)(1)(i) exists. The statement must also set forth the fact that
the person has notified the State regulatory authority, if any, in
writing, of the existence of the possible violation, condition, or
practice, and the basis for the person's assertion that the State
regulatory authority has not taken action with respect to the possible
violation. The statement must set forth a phone number, address, and,
if available, an email address where the person can be contacted.
* * * * *
[FR Doc. 2025-10999 Filed 6-13-25; 8:45 am]
BILLING CODE 4310-05-P
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</html>Indexed from Federal Register on June 16, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.