90 FR 114 pgs. 25174-25180 - Rescission of the “Ten-Day Notices and Corrective Action for State Regulatory Program Issues” Rule, Issued April 9, 2024
Type: PRORULEVolume: 90Number: 114Pages: 25174 - 25180
Pages: 25174, 2517525176, 25177, 25178, 25179, 25180, Docket number: [Docket No. OSM-2025-0018; S1D1S SS08011000 SX064A000 256S180110; S2D2S SS08011000 SX064A000 25XS501520]
FR document: [FR Doc. 2025-10999 Filed 6-13-25; 8:45 am]
Agency: Interior Department
Sub Agency: Surface Mining Reclamation and Enforcement Office
Official PDF Version: PDF Version
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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.
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:
[top] Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov and search for Docket Number OSM-2025-0018. Follow the instructions at this website.
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, jtyree@osmre.gov . 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. §?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. §?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 §§?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.
[top] 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
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.
[top] 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
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 §?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 §?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 §?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 §?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.
[top] 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
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
1. The authority citation for Part 733 continues to read as follows:
Authority:
30 U.S.C. 1201 et seq.
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2. Revise §?733.5 to read as follows:
§?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.
3. Revise §?733.12 to read as follows:
§?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 §?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
1. The authority citation for part 842 continues to read as follows:
Authority:
30 U.S.C. 1201 et seq.
§?842.5 [Removed and reserved]
4. Remove and reserve §?842.5.
5. Revise §?842.11(b) to read as follows:
§?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
[top] (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.
( 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 §?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 §?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 §?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.
6. Revise §?842.12(a) to read as follows:
§?842.12 Requests for Federal inspections.
(a) Any person may request a Federal inspection under §?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 §?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