761ss.mj.2021.06.08.2021

Supporting Statement A

30 CFR Part 761—

Areas Designated by Act of Congress

OMB Control Number 1029-0111

Terms of clearance: None

Introduction

We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are submitting this information collection clearance package to renew our authority to collect information and require recordkeeping under 30 CFR Part 761, Areas Designated by Act of Congress. The Office of Management and Budget (OMB) previously reviewed and approved the collection of information and recordkeeping requirements under this part, assigning it control number 1029-0111.

The regulations at 30 CFR Part 761 implement section 522(e) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act), 30 U.S.C. 1272(e), which prohibits or restricts surface coal mining operations on certain lands unless the operation was in existence on August 3, 1977, or unless the person planning the operation has valid existing rights (VER) or obtains a waiver. The regulations in 30 CFR Part 761 define the circumstances and establish procedures under which a person can obtain an exception or waiver from the prohibitions and restrictions of section 522(e) of the Act.

OMB previously approved 3,119 hours for 30 CFR Part 761. We are now requesting 2,795 hours, a decrease of 324 hours. These hours reflect an overall decrease due primarily from the downward trend in the number of new permit applications and revision requests per year.

The respondents consist of the 24 state regulatory authorities and persons who desire to mine coal on lands on which surface coal mining operations are otherwise prohibited under section 522(e) of SMCRA.

General Instructions

A completed Supporting Statement A must accompany each request for approval of a collection of information. The Supporting Statement must be prepared in the format described below, and must contain the information specified below. If an item is not applicable, provide a brief explanation. When the question “Does this ICR contain surveys, censuses, or employ statistical methods?” is checked "Yes," then a Supporting Statement B must be completed. OMB reserves the right to require the submission of additional information with respect to any request for approval.

Specific Instructions

Justification

1. Explain the circumstances that make the collection of information necessary. Identify any legal or administrative requirements that necessitate the collection.

Section 522(e) of SMCRA prohibits or restricts surface coal mining operations on certain lands unless the operation was in existence on the date of enactment of SMCRA (August 3, 1977) or unless a person has valid existing rights to conduct such operations. Protected lands include units of the National Park System, wildlife refuges, wilderness areas, historic sites, federal lands in national forests, and buffer zones for public roads, public parks, public buildings, occupied dwellings, and cemeteries.

2. Indicate how, by whom, and for what purpose the information is to be used. Except for a new collection, indicate the actual use the agency has made of the information received from the current collection. Be specific. If this collection is a form or a questionnaire, every question needs to be justified.

Section 761.13:
SMCRA regulatory authorities use the information collected under 30 CFR 761.13 to ensure that persons who conduct or intend to conduct surface coal mining operations on Federal lands in national forests under the compatibility finding provision of section 522(e)(2) of the Act meet the statutory criteria for that exception from the prohibition on conducting surface coal mining operations on those lands.

Section 761.14:
OSMRE and state regulatory authorities use the information collected under §761.14 to ensure that persons who conduct or intend to conduct surface coal mining operations on the lands listed in section 522(e)(4) of the Act meet the statutory criteria for waivers from the prohibition on conducting operations in these areas. Members of the public use the public notice required by §761.14 to gain knowledge of, and provide input to OSMRE or the state regulatory authority on proposals to conduct surface coal mining operations on the lands listed in section 522(e)(4) of the Act.

Section 761.15:
OSMRE and state regulatory authorities use the information collected under §761.15 to ensure that persons who conduct or intend to conduct surface coal mining operations on the lands listed in section 522(e)(4) of the Act meet the statutory criteria by obtaining a written waiver from the dwelling’s owner. State regulatory authorities use §761.15 to determine that the applicant is eligible to obtain a permit to conduct surface coal mining operations on the lands listed in section 522(e)(4) of the Act.

Section 761.16:
OSMRE and state regulatory authorities use the information collected under §761.16 to ensure that persons who conduct or intend to conduct surface coal mining operations on the lands listed in section 522(e) of the Act under the VER exception actually have VER. Members of the public use the public notices required by §761.16 to gain knowledge of, and provide input on, proposals to conduct surface coal mining operations on the lands listed in section 522(e) of the Act.

Section 761.17:
OSMRE and state regulatory authorities use the information collected under §761.17(c) and (d) to ensure that persons who conduct or intend to conduct surface coal mining operations on the lands listed in section 522(e) of the Act meet the statutory criteria for waivers or exceptions from the prohibition on conducting operations on those lands.

3. Describe whether, and to what extent, the collection of information involves the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses, and the basis for the decision for adopting this means of collection. Also describe any consideration of using information technology to reduce burden and specifically how this collection meets GPEA requirements.


We encourage, but do not require, the use of electronic information collection and submission techniques whenever appropriate and feasible. We provide training, software, and technical assistance to states to promote the use of electronic information technology systems. OSMRE currently estimates that 75% of applications are received electronically, with some State regulatory authorities in the early stages of electronic exchange, while others receive 95% of permit applications on CD’s or are directly downloaded to the State-run internet server. Applicants realize some cost reductions due to electronic submission of data through eliminating reproduction costs and postage.

4. Describe efforts to identify duplication. Show specifically why any similar information already available cannot be used or modified for use for the purposes described in Item 2 above.

The information collection requirements of 30 CFR Part 761 do not duplicate information collection requirements under other laws and regulations. OSMRE is the primary federal agency charged with implementation of section 522(e) of SMCRA. As required by SMCRA, our rules are structured to maximize coordination with other agencies and minimize duplication.

5. If the collection of information impacts small businesses or other small entities, describe any methods used to minimize burden.

There are no special provisions for small businesses or other small entities. Special provisions are not appropriate because the requested information is the minimum needed to ensure that surface coal mining operations do not occur in areas in which they are prohibited or to document that all necessary waivers have been obtained with the appropriate degree of opportunity for public participation.

6. Describe the consequence to Federal program or policy activities if the collection is not conducted or is conducted less frequently, as well as any technical or legal obstacles to reducing burden.

Failure to collect the information requested for 30 CFR Part 761 would impair the ability of SMCRA regulatory authorities to ensure that surface coal mining operations on the lands listed in section 522(e) of the Act are conducted only under the circumstances set forth in the Act. Furthermore, the Act specifically requires some of the requested information.

7. Explain any special circumstances that would cause an information collection to be conducted in a manner:

* requiring respondents to report information to the agency more often than quarterly;

* requiring respondents to prepare a written response to a collection of information in fewer than 30 days after receipt of it;

* requiring respondents to submit more than an original and two copies of any document;

* requiring respondents to retain records, other than health, medical, government contract, grant-in-aid, or tax records, for more than three years;

* in connection with a statistical survey that is not designed to produce valid and reliable results that can be generalized to the universe of study;

* requiring the use of a statistical data classification that has not been reviewed and approved by OMB;

* that includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or

* requiring respondents to submit proprietary trade secrets, or other confidential information, unless the agency can demonstrate that it has instituted procedures to protect the information's confidentiality to the extent permitted by law.


This collection of information conforms with the guidelines in 5 CFR 1320.5(d)(2); i.e., 30 CFR Part 761 does not require that collection of information be conducted in a manner that—

• requires respondents to report information to the agency more often than quarterly;

• requires respondents to prepare a written response to a collection of information in fewer than 30 days after receipt of it;

• requires respondents to submit more than an original and two copies of any document;

• requires respondents to retain records, other than health, medical, government contract, grant-in-aid, or tax records, for more than three years;

• in connection with a statistical survey, is not designed to produce valid and reliable results that can be generalized to the universe of study;

• requires the use of a statistical data classification that has not been reviewed and approved by OMB;

• includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or

• requires respondents to submit proprietary trade secrets, or other confidential information unless the agency can demonstrate that it has instituted procedures to protect the information’s confidentiality to the extent permitted by law.

8. If applicable, provide a copy and identify the date and page number of publication in the Federal Register of the agency's notice, required by 5 CFR 1320.8(d), soliciting comments on the information collection prior to submission to OMB. Summarize public comments received in response to that notice and in response to the PRA statement associated with the collection over the past three years, and describe actions taken by the agency in response to these comments. Specifically address comments received on cost and hour burden.

Describe efforts to consult with persons outside the agency to obtain their views on the availability of data, frequency of collection, the clarity of instructions and recordkeeping, disclosure, or reporting format (if any), and on the data elements to be recorded, disclosed, or reported. Consultation with representatives of those from whom information is to be obtained or those who must compile records should occur at least once every three years — even if the collection of information activity is the same as in prior periods. There may be circumstances that may preclude consultation in a specific situation. These circumstances should be explained.

We provided a concise description of the type of information collection burden imposed by 30 CFR Part 761, the currently approved burden, and proposed wage and nonwage burden estimates, along with a request for input on the associated information collection requirements and any other comments they wished to make regarding the clarity of the rules and potential burden. Contacts were made with the following:

Montana Department of Environmental Quality

Coal and Opencut Mining Bureau

1216 East 6th Avenue

Helena, Montana 

59620-0901

Ohio Division of Natural Resources

Cambridge, Ohio 43725

Illinois Department of Natural Resources

Office of Mines and Minerals

Springfield, IL 62702

OSMRE

Knoxville Field Office

710 Locust St.

Knoxville, TN 37902

Burden estimates for the sections discussed below are based on the responses that we received from these individuals and our experience as the regulatory authority in Tennessee and on Indian lands. No person contacted expressed concerns with the availability of data, frequency of collection, clarity of instructions, or data elements reported.

On March 24, 2021, OSMRE published in the Federal Register (86 FR 15698) a notice requesting comments from the public regarding the need for the collection of information, the accuracy of the burden estimate, ways to enhance the information collection, and ways to minimize the burden on respondents. This notice gave the public 60 days in which to comment. However, no comments were received.

9. Explain any decision to provide any payment or gift to respondents, other than remuneration of contractors or grantees.


We provide no payments or gifts to respondents.

10. Describe any assurance of confidentiality provided to respondents and the basis for the assurance in statute, regulation, or agency policy.

Sections 507(b)(17), 508(a)(12), and 508(b) of SMCRA require that certain types of permit application information be kept confidential when the permit applicant so requests. The Archeological Resources Protection Act of 1979, 16 U.S.C. 470, requires that information on the nature and location of archeological resources on public lands and Indian lands be kept confidential. These provisions apply to requests for VER determinations under 30 CFR 761.16.

11. Provide additional justification for any questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private. This justification should include the reasons why the agency considers the questions necessary, the specific uses to be made of the information, the explanation to be given to persons from whom the information is requested, and any steps to be taken to obtain their consent.

There are no questions of a sensitive nature.

12. Provide estimates of the hour burden of the collection of information. The statement should:

* Indicate the number of respondents, frequency of response, annual hour burden, and an explanation of how the burden was estimated. Unless directed to do so, agencies should not conduct special surveys to obtain information on which to base hour burden estimates. Consultation with a sample (fewer than 10) of potential respondents is desirable. If the hour burden on respondents is expected to vary widely because of differences in activity, size, or complexity, show the range of estimated hour burden, and explain the reasons for the variance. Generally, estimates should not include burden hours for customary and usual business practices.

* If this request for approval covers more than one form, provide separate hour burden estimates for each form and aggregate the hour burdens.

* Provide estimates of annualized cost to respondents for the hour burdens for collections of information, identifying and using appropriate wage rate categories. The cost of contracting out or paying outside parties for information collection activities should not be included here.


a. Burden Hour Estimates for Respondents

The table (below) summarizes the information collection requirements and changes to the current collection burden for 30 CFR part 761. The number of responses is determined by an estimated proportion for number of expected new permits and permit revisions in proximity to sensitive areas. The proportion (40%) used here. Previously, OSMRE estimated 190 application per year. This number declined to 168 (2018 -2020) which means 67 (40% of 168) are expected to fall under the requirements of special lands. This decline corresponds to 76 from the previous ICR renewal.

Summary of Annual Burden to Respondents for 30 CFR Part 761
Section	Number of Industry Responses	Hours per Industry Response	Total Industry Hours	Number of State Responses	Hours per State Response	Total State Hours	Total Hours	Hours Currently Approved	Difference
761.13	1	23	23	0	0	0	23	23	0
761.14(c)	67	16	1,072	65	4	260	1,332	1,512	-180
761.15	67	15	1,005	65	1	65	1,070	1,214	-144
761.16	6	40	240	6	21	126	366	366	0
761.17	0	0	0	2	2	4	4	4	0
Total	141		2,340	138		455	2,795	3,119	-324

b. Estimated Annual Wage Cost to Respondents
OSMRE uses the U.S. Department of Labor’s Bureau of Labor Statistics (BLS) figures for calculating cost burden placed on respondents. For industry wages for occupation are derived from http://www.bls.gov/oes/current/naics4_212100.htm. For state government wages are found at http://www.bls.gov/oes/current/naics4_999200.htm. We have also included a benefits factor at a rate of 1.4 of salaries for the coal companies, and a benefits factor of 1.6 for state government employees. These benefit estimates were developed in accordance with the BLS news release USDL-21-0437, dated March 18, 2021, Employer Costs for Employee Compensation – December 2020 (http://www.bls.gov/news.release/pdf/ecec.pdf).

Industry and State Wages By Occupation
	BLS Wage Rate	Wage with Benefit
Industry: Clerical	$20.70	$28.98
Industry: Environmental Engineer	$42.44	$59.42
State: Environmental Engineer	$42.15	$67.44

Industry and State Hours Per Response
	761.13	761.14(c)	761.15	761.16	761.17
Industry: Clerical	4	4	3	8
Industry: Environmental Engineer	19	12	12	32
State: Environmental Engineer		4	1	21	2

Industry Wage Cost Per Response and Total Annual Cost
	761.13	761.14(c)	761.15	761.16
	Cost Per Response
Clerical @$28.98/hour	$115.92	$115.92	$86.94	$231.84
Environmental Engineer@$59.42/hour	$1,128.90	$712.99	$712.99	$1,901.31
Cost Per Response	$1,244.82	$828.91	$799.93	$2,133.15
Responses	1	67	67	6	Total
Total annual cost	$1,244.82	$55,537.10	$53,595.44	$12,798.91	$123,176

State Wage Cost Per Response and Total Annual Cost
	761.14(c)	761.15	761.16	761.17
	Cost Per Response
Environmental Engineer @67.44/hour	$269.76	$67.44	$1,416.24	$134.88
Responses	65	65	6	2	Total
Total annual cost	$17,534.40	$4,383.60	$8,497.44	$269.76	$30,685

13. Provide an estimate of the total annual non-hour cost burden to respondents or recordkeepers resulting from the collection of information. (Do not include the cost of any hour burden already reflected in item 12.)

* The cost estimate should be split into two components: (a) a total capital and start-up cost component (annualized over its expected useful life) and (b) a total operation and maintenance and purchase of services component. The estimates should take into account costs associated with generating, maintaining, and disclosing or providing the information (including filing fees paid for form processing). Include descriptions of methods used to estimate major cost factors including system and technology acquisition, expected useful life of capital equipment, the discount rate(s), and the time period over which costs will be incurred. Capital and start-up costs include, among other items, preparations for collecting information such as purchasing computers and software; monitoring, sampling, drilling and testing equipment; and record storage facilities.

* If cost estimates are expected to vary widely, agencies should present ranges of cost burdens and explain the reasons for the variance. The cost of purchasing or contracting out information collection services should be a part of this cost burden estimate. In developing cost burden estimates, agencies may consult with a sample of respondents (fewer than 10), utilize the 60-day pre-OMB submission public comment process and use existing economic or regulatory impact analysis associated with the rulemaking containing the information collection, as appropriate.

* Generally, estimates should not include purchases of equipment or services, or portions thereof, made: (1) prior to October 1, 1995, (2) to achieve regulatory compliance with requirements not associated with the information collection, (3) for reasons other than to provide information or keep records for the government, or (4) as part of customary and usual business or private practices.



Total Annual Non-Wage Cost Burden to Respondents

a. Annualized Capital and Start-Up Costs

The information collection requirements of 30 CFR 761 do not involve any capital or start-up costs apart from expenditures associated with customary business practices.




b. Operation and Maintenance Costs

Based on consultation with the individual listed in item 8, we estimate non-wage operation and maintenance costs to the industry for compliance with the information collection requirements of 761.13 – 761.17.

761.13:
These costs consist primarily of fuel and equipment maintenance expenses for travel to the courthouse and potential minesite, as well as certain analytical and mapping costs.
At $120 per request, for a total annual cost of $120 (1 request per year x $120 per request).

761.14:
These costs consist primarily of fuel and equipment maintenance expenses for travel to the courthouse and potential minesite, as well as certain analytical and mapping costs.

At $120 per request, for a total annual cost of $8,040 (67 requests per year x $120 per request).

761.15
These costs consist primarily of fuel and equipment maintenance expenses for travel to meet with landowners and perhaps the minesite, as well as certain analytical and mapping costs.

At $120 per request, for a total annual cost of $8,040 (67 requests per year x $120 per request).

761.16:

For state regulatory authorities for 761.16 of significance distinct non-wage operation or maintenance costs associated with compliance are the publication costs for the 2 newspaper notices required for each request for a VER determination. Based on our experience and consultation with the individuals listed in item 8, we estimate that publication of a newspaper notice will cost an average of $75 per notice. Therefore, the 24 state regulatory authorities will incur total annual non-wage expenses of $900 (2 notices per VER request x 6 VER requests per year x $75 for publication of each notice).

Based on the above total annual non-wage cost amounts for all sections amounts to $17,100.

Total Annual Non-wage Cost Burden
	761.13	761.14(c)	761.15	761.16
Annualized Capital and Start-Up Cost	0	0	0	0
Operation and Maintenance Costs per Request	120	120	120	75
Number of Request	1	67	67	12	Total
Total Annual Cost	$120	$8,040	$8,040	$900	$17,100

14. Provide estimates of annualized cost to the Federal government. Also, provide a description of the method used to estimate cost, which should include quantification of hours, operational expenses (such as equipment, overhead, printing, and support staff), and any other expense that would not have been incurred without this collection of information.

Estimate of Annualized Cost to the Federal Government

OSMRE has calculated our employee costs using Federal employee pay tables from the Office of Personnel Management’s website at https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2021/RUS_h.pdf. We have included a 1.6 multiplier for benefits as discussed in the BLS news release USDL-21-04371.

The cost to the Federal Government is based on an average wage rate (GS 12/5 specialist/physical scientist) of $42.08 per hour or $67.33 per hour with benefits (including a 1.6 multiplier for benefits.

Oversight: There is no established frequency for conducting oversight reviews of state compliance with the requirements of 30 CFR 761.13 – 761.17. If we conduct an oversight review of this topic in one state program per year, that review would require an average of 40 hours, which means that the estimated annual cost to OSMRE for this oversight activity is $2,693.20 for sections 761.13 – 761.16 (see Summary of Federal Cost table below). There is no established frequency for conducting oversight reviews of state compliance with the requirements of 30 CFR 761.17. If we conduct an oversight review of this topic in one state program per year, that review would require an average of 20 hours. We estimate that the annual cost to us for this oversight activity would be $1,346.60 (20 hours per review x $67.33 per hour x 1 review per year).

Federal Programs: OSMRE is the regulatory authority for all operations under Federal regulatory programs, on Indian lands, and on Federal lands in states without a cooperative agreement. Based upon data for the 2018 and 2019 evaluation years, we estimate that we will annually issue approximately 2 new permits or permit revisions adding acreage for lands and operations for which we are the regulatory authority. Federal program cost are described by section below and summarized in Federal Cost Summary table below:

761.13:
At the wage rate of $67.33 per hour, the annual wage cost to the Federal government to provide public notice and prepare written findings for this request would be $269.32[(1 hour per notice per request + 1 hour per finding per request) x $67.33 per hour x 2 requests]. There are no significant non-wage costs associated with the notice and findings.

761.14:
We receive an average of only one request for a public hearing on a waiver request for a public road. Based on previous request we spend 12 hours of Federal staff time. In addition, we incurred $400 in nonwage costs to publish the public notices in newspapers and radio announcements.

761.15:
We do not routinely receive requests for waivers for mining within 300 feet of a dwelling. However, we are including one request per year as potential cost placeholder. The annual wage cost to the Federal government to review such waiver requests would be $269.32 [(a total of 4 hours for the finding and the notice) x $67.33 per hour]. There are no significant non-wage costs associated with the notice and findings.

761.16:

OSMRE is responsible for making VER determinations for the lands listed in paragraphs 30 CFR 761.11(a) and (b) [paragraphs (e)(1) and (2) of section 522 of SMCRA], regardless of whether we are the regulatory authority.

Based on historical data, we receive at most one request per year for a VER determination for lands for which we are the regulatory authority. As explained in detail in item 12.a, each request requires an average of 19 hours to process. At the wage, the annual wage cost to the Federal government for processing this request would be $1,279.27 (19 hours per request x $67.33 per hour x 1 request per year).


The only significant non-wage costs associated with processing this request is publication of two newspaper notices per request, which would total $150 per year (2 notices per request x $75 per notice x 1 request per year), or $1,361 for the total cost for Federal program states.

In addition, we receive at most one request per year for a VER determination for lands protected under 30 CFR 761.11(a) or (b) for Federal lands, including National parks and Forests. This type of request generally is much more complex and requires more extensive review—approximately 60 hours. At the wage rate per hour, the annual wage cost to the Federal government for processing this request would be $4,039.80 (60 hours per request x $67.33 per hour x 1 request per year).

In terms of non-wage costs, this type of request requires two publications in the Federal Register in addition to the two newspaper notices. The Office of the Federal Register charges approximately $500 per page and the average VER notice is 2 pages long. Therefore, the non-wage costs associated with processing this request would total $2,150 per year [(2 newspaper notices per request x $75 per notice + 2 Federal Register notices per request x $1,000 per notice) x 1 request per year], or $6,189.80 for Federal lands.

Provisions of 30 CFR 761.17(c) or (d) have required infrequent application but require a total of 4 hours annually [2 hours for §761.17(c) + 2 hours for §761.17(d)]. At the wage rate the annual wage cost to the Federal government under 30 CFR 761.17(c) and (d) would be $269.32 (4 hours x $67.33 per hour). There would be no significant or distinct non-wage costs.

Federal Cost Summary
	761.13	761.14(c)	761.15	761.16	761.17
Oversight
Hours	40	40	40	40	20
Cost $ @67.33/hour	2,693.20	2,693.20	2,693.20	2,693.20	1,346.60
Federal Programs
Hours		12.00	4.00	19.00	4.00
Cost $ @67.33/hour	0.00	807.96	269.32	1,279.27	269.32
Nonhour Cost $		400.00		1,361.00
Federal Lands
Hours	0.00	0.00	0.00	60.00	0.00
Cost $ @67.33/hour	0.00	0.00	0.00	4,039.80	0.00
Nonhour Cost $				2,150.00		Total
Total $	2,693.20	3,901.16	2,962.52	11,523.27	1,615.92	22,696

15. Explain the reasons for any program changes or adjustments in hour or cost burden.


We are requesting 2,795 burden hours, a decrease of 324 hours due primarily to a decrease in the annual request for new permit and revision requests from 76 per year to 67.

3119 hours currently approved by OMB

- 324 hours due to an adjustment

2,795 hours

Non-wage cost decreased from $19,260 to $17,100 a decrease of $2,160 as
a result of fewer responses.

16. For collections of information whose results will be published, outline plans for tabulation and publication. Address any complex analytical techniques that will be used. Provide the time schedule for the entire project, including beginning and ending dates of the collection of information, completion of report, publication dates, and other actions.


We have no plans to publish the information collected.

17. If seeking approval to not display the expiration date for OMB approval of the information collection, explain the reasons that display would be inappropriate.


We are not seeking a waiver from the requirement to display the expiration date of the OMB approval of the information collection.

18. Explain each exception to the topics of the certification statement identified in "Certification for Paperwork Reduction Act Submissions."

There is no exception to the "Certification for Paperwork Reduction Act Submissions."

1