[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]


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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.

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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