[Federal Register Volume 66, Number 213 (Friday, November 2, 2001)]
[Proposed Rules]
[Pages 55611-55614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27543]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 924
[SPATS No. MS-017-FOR]
Mississippi Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
-----------------------------------------------------------------------
SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is announcing receipt of a proposed amendment to the Mississippi
regulatory program (Mississippi program) under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA or the Act). Mississippi
proposes revisions to and additions of regulations concerning valid
existing rights; roads; formal review of citations; and revegetation
success standards. Mississippi intends to revise its program to be
consistent with the corresponding Federal regulations and to improve
operational efficiency.
This document gives the times and locations that the Mississippi
program and the proposed amendment to that program are available for
your inspection, the comment period during which you may submit written
comments on the amendment, and the procedures that we will follow for
the public hearing, if one is requested.
DATES: We will accept written comments until 4 p.m., c.s.t., December
3, 2001. If requested, we will hold a public hearing on the amendment
on November 27, 2001. We will accept requests to speak at the hearing
until 4 p.m., c.s.t. on November 19, 2001.
ADDRESSES: You should mail or hand deliver written comments and
requests to speak at the hearing to Arthur W. Abbs, Director,
Birmingham Field Office, at the address listed below.
You may review copies of the Mississippi program, the amendment, a
listing of any scheduled public hearings, and all written comments
received in response to this document at the addresses listed below
during normal business hours, Monday through Friday, excluding
holidays. You may receive one free copy of the amendment by contacting
OSM's Birmingham Field Office.
Arthur W. Abbs, Director, Birmingham Field Office, Office of
Surface Mining, 135 Gemini Circle, Suite 215, Homewood, Alabama 35209,
Telephone: (205) 290-7282.
Department of Environmental Quality, Office of Geology, 2380
Highway 80 West, P.O. Box 20307, Jackson, Mississippi 39289-1307,
Telephone: (601) 961-5500.
FOR FURTHER INFORMATION CONTACT: Arthur W. Abbs, Director, Birmingham
Field Office. Telephone: (205) 290-7282. Internet: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Mississippi Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``. . . a State law
which provides for the regulation of surface coal mining and
reclamation operations in accordance with the requirements of this Act
. . .; and rules and regulations consistent with regulations issued by
the Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7).
On the basis of these criteria, the Secretary of the Interior
conditionally approved the Mississippi program on September 4, 1980.
You can find background information on the Mississippi program,
including the Secretary's findings and the disposition of comments, in
the September 4, 1980, Federal Register (45 FR 58520). You can find
later actions on the program at 30 CFR 924.10, 924.15, 924.16, and
924.17.
II. Description of the Proposed Amendment
By letter dated September 28, 2001 (Administrative Record No. MS-
0388), Mississippi sent us an amendment to its
[[Page 55612]]
program under SMCRA and the Federal regulations at 30 CFR 732.17(b).
Mississippi sent the amendment in response to our letters dated August
17, 2000, and August 23, 2000 (Administrative Record Nos. MS-0382 and
MS-0381, respectively), that we sent to Mississippi in accordance with
30 CFR 732.17(c), and in response to required program amendments at 30
CFR 924.16(i) and (l). The amendment also includes changes made at
Mississippi's own initiative. Mississippi proposes to amend the
Mississippi Surface Coal Mining Regulations. Below is a summary of the
changes proposed by Mississippi. The full text of the program amendment
is available for your inspection at the locations listed above under
ADDRESSES.
A. Section 105, Definitions
Mississippi proposes to add a definition for ``immediate mining
area.'' Mississippi also proposes to revise its definition of ``valid
existing rights.''
B. Section 1103, Responsibility
Mississippi proposes to add the phrase, ``a valid existing rights
determination made by OSM'' after the reference to ``30 U.S.C.
1272(e).'' Mississippi also proposes to replace the phrase, ``this
Chapter'' with the phrase, ``these regulations.''
C. Section 1105, Areas Where Mining Is Prohibited or Limited
Mississippi proposes to add the phrase, ``or qualify for the
exception for existing operations under paragraph (h) of this section''
at the end of the introductory language to this section. Mississippi
also proposes to add new paragraph (h) to provide that the prohibitions
and limitations of section 1105 do not apply to surface coal mining
operations for which a valid permit exists when the land comes under
the protection of section 1105 of the Mississippi regulations, section
522(e) of SMCRA, or 30 CFR 761.11.
D. Section 1106, Submission and Processing of Requests for Valid
Existing Rights Determinations
Mississippi proposes to add this new section to describe the
authority of the Permit Board to make valid existing rights
determinations; what an applicant must submit as part of a request for
a valid existing rights determination; what the Department must do when
it receives a request for a valid existing rights determination; and
how the Permit Board will make decisions concerning valid existing
rights claims. This new section also provides that determinations
concerning valid existing rights are subject to administrative and
judicial review under Mississippi Code Annotated (Miss. Code Ann.) 53-
9-77. Finally, this new section requires the Department and Permit
Board to make requests for valid existing rights determinations and
associated records available to the public.
E. Section 1107, Procedures
At paragraph (a), Mississippi proposes to add the phrase, ``or
earlier, if properly requested under Sec. 1106'' after the opening
phrase, ``upon receipt of a complete application for a surface coal
mining and reclamation operation permit.''
In the first sentence of paragraph (b), Mississippi proposes to
delete the specific references to section 1105(a), (f) and (g), and the
phrase, ``or if the operation did not exist on August 3, 1977.'' The
revised sentence reads as follows:
(b) Where the proposed operation would be located on any lands
listed in Sec. 1105, the Permit Board shall deny the permit if the
applicant has no valid existing rights for the area.
Mississippi proposes to revise paragraph (f) to provide that the
Permit Board will follow the procedures required by section 3114(d)
when it determines that a proposed surface coal mining operation will
adversely affect any publicly owned park or any place included in the
National Register of Historic Places.
Finally, Mississippi proposes to remove paragraph (h), which
provides that a valid existing rights determination by the Permit Board
is subject to administrative and judicial review under Miss. Code Ann.
53-9-77.
F. Section 2103, Permit Requirements for Exploration Removing More Than
250 Tons of Coal, or Occurring on Lands Designated as Unsuitable for
Surface Coal Mining Operations
Mississippi proposes to redesignate several paragraphs in this
section. Mississippi proposes to redesignate paragraph (b)(13)(A) in
its entirety as paragraph (c). Mississippi also proposes to redesignate
paragraph (b)(13)(B), except paragraph (b)(13)(B)(iii), as new
paragraph (d). Mississippi proposes to redesignate paragraph
(b)(13)(B)(iii) as new paragraph (e). Finally, Mississippi proposes to
redesignate paragraph (b)(13)(C) in its entirety as new paragraph (f).
Mississippi also proposes to add new paragraphs in this section.
Mississippi proposes to add new paragraph (b)(14) to require applicants
for coal exploration permits to submit, as part of their permit
application, a demonstration that, for any lands listed at section
1105, the proposed exploration activities have been designed to
minimize interference with the values for which those lands were
designated as unsuitable for surface coal mining operations.
Furthermore, applicants must provide documentation that they have
consulted with the owner of the feature causing the land to come under
the protection of section 1105, as well as the regulatory authority
with primary jurisdiction over the feature, when applicable.
Mississippi also proposes to add a new provision at redesignated
paragraph (d)(2)(iv) to require the Permit Board to approve an
application for a coal exploration permit if it finds, for lands
protected under section 1105, the applicant has demonstrated that the
proposed exploration and reclamation activities will minimize
interference with the values for which those lands were designated as
unsuitable for surface coal mining operations. The new provision also
requires the Permit Board to provide reasonable opportunity to the
owner of the feature causing the land to come under the protection of
section 1105, as well as the agency with primary jurisdiction over the
feature when applicable, to comment on whether the finding is
appropriate.
G. Section 3114, Valid Existing Rights Review at Time of Permit
Application Review
Mississippi proposes to add this new section to describe the
procedures the Permit Board or Department will follow when reviewing an
administratively complete application for a surface coal mining
operation, or an administratively complete application for revision or
modification of the boundaries of a surface coal mining operations
permit.
H. Section 53103, Revegetation: Standards for Success
Mississippi proposes to revise paragraph (a) to require the success
of revegetation to be judged on the effectiveness of the vegetation for
the approved post-mining land use, the extent of perennial cover
compared to the cover occurring in natural vegetation areas, the
general requirements of Secs. 5397-53103, and the specific requirements
of Appendix A, ``Revegetation Success Standards.''
Mississippi also proposes to redesignate paragraph (a)(1) as
paragraph (b)(1); paragraph (b)(1) as paragraph (b)(2); paragraph
(b)(2) in its entirety as paragraph (b)(3); and paragraph (b)(3) as new
paragraph (4).
[[Page 55613]]
I. Section 53111, Roads: General
Mississippi proposes to add new paragraph (a)(4) to describe when a
limited use vehicular pathway is not classified as a road. Mississippi
also proposes to add new paragraph (a)(5) to read as follows:
(5) A limited use vehicular pathway: (i) May include water bars
across the pathway and drainage ways incidental to the area; (ii)
shall be reclaimed with vegetation sufficient to prevent erosion
prior to phase II bond release; (iii) along with the area it
disturbs, is a mining related activity and must be covered by an
appropriate reclamation bond; (iv) will be reclassified as a road if
upgraded by construction activities such as blading, construction,
placement of a compacted surface, cut and fill of the natural grade,
construction of drainage ditches or low water crossings, or
installation of drainage structures not previously approved by the
Department as appropriate to a limited use vehicular pathway. The
submittal and approval of plans and drawings required by these
regulations must be completed prior to the upgrading of a limited
use vehicular pathway.
J. Section 6511, Formal Review of Citations
Mississippi proposes to revise the first sentence of paragraph (c)
to allow any party to a proceeding that is the result of the issuance
of a notice of violation or cessation order to apply to the Commission
for temporary relief from the notice or cessation order. Mississippi
also proposes to replace all references throughout this section to
``Chief of the Legal Division'' with ``General Counsel.''
K. Appendix A, Revegetation Success Standards
Mississippi proposes to add Appendix A to describe the standards
for revegetation success on commercial forest lands, croplands,
industrial or commercial lands, pasture and previously mined areas,
prime farmlands, recreation lands, residential lands, and wildlife
habitats.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking comments
on whether the proposed amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the Mississippi program.
Written Comments: If you submit written or electronic comments on
the proposed rule during the 30-day comment period, they should be
specific, should be confined to issues pertinent to the notice, and
should explain the reason for your recommendation(s). We may not be
able to consider or include in the Administrative Record comments
delivered to an address other than the one listed above (see
ADDRESSES).
Electronic Comments: Please submit Internet comments as an ASCII,
WordPerfect, or Word file avoiding the use of special characters and
any form of encryption. Please also include ``Attn: SPATS NO. MS-017-
FOR'' and your name and return address in your Internet message. If you
do not receive a confirmation that we have received your Internet
message, contact the Birmingham Field Office at (205) 290-7282.
Availability of Comments: Our practice is to make comments,
including names and home addresses of respondents, available for public
review during regular business hours at OSM's Birmingham Field Office
(see ADDRESSES). Individual respondents may request that we withhold
their home address from the administrative record, which we will honor
to the extent allowable by law. There also may be circumstances in
which we would withhold from the administrative record a respondent's
identity, as allowable by law. If you wish us to withhold your name
and/or address, you must state this prominently at the beginning of
your comment. However, we will not consider anonymous comments. We will
make all submissions from organizations or businesses, and from
individuals identifying themselves as representatives or officials of
organizations or businesses, available for public inspection in their
entirety.
Public Hearing: If you wish to speak at the public hearing, contact
the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m.,
c.s.t. on November 19, 2001. We will arrange the location and time of
the hearing with those persons requesting the hearing. If no one
requests an opportunity to speak at the public hearing, the hearing
will not be held.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at a public hearing
provide us with a written copy of his or her testimony. The public
hearing will continue on the specified date until all persons scheduled
to speak have been heard. If you are in the audience and have not been
scheduled to speak and wish to do so, you will be allowed to speak
after those who have been scheduled. We will end the hearing after all
persons scheduled to speak and persons present in the audience who wish
to speak have been heard.
If you are disabled and need a special accommodation to attend a
public hearing, contact the person listed under FOR FURTHER INFORMATION
CONTACT.
Public Meeting: If only one person requests an opportunity to speak
at a hearing, a public meeting, rather than a public hearing, may be
held. If you wish to meet with us to discuss the proposed amendment,
you may request a meeting by contacting the person listed under FOR
FURTHER INFORMATION CONTACT. All such meetings are open to the public
and, if possible, we will post notices of meetings at the locations
listed under ADDRESSES. We will also make a written summary of each
meeting a part of the Administrative Record.
IV. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary under SMCRA.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that, to the
extent allowed by law, this rule meets the applicable standards of
subsections (a) and (b) of this section. However, these standards are
not applicable to the actual language of State regulatory programs and
program amendments because each program is drafted and promulgated by a
specific State, not OSM. Under sections 503 and 505 of SMCRA (30 U.S.C.
1253 and 1255) and 30 CFR 730.11, 732.15, and
[[Page 55614]]
732.17(h)(10), decisions on proposed State regulatory programs and
program amendments submitted by the States must be based solely on a
determination of whether the submittal is consistent with SMCRA and its
implementing Federal regulations and whether the other requirements of
30 CFR parts 730, 731, and 732 have been met.
Executive Order 13211--Regulations That Significantly Affect The
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866, and because it is not expected to have a
significant adverse effect on the supply, distribution, or use of
energy, a Statement of Energy Effects is not required.
National Environmental Policy Act
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed State regulatory program provision does not
constitute a major Federal action within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Therefore, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, federal, state, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the State submittal
which is the subject of this rule is based upon counterpart Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 924
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 10, 2001.
Ervin J. Barchenger,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 01-27543 Filed 11-1-01; 8:45 am]
BILLING CODE 4310-05-P