[Federal Register Volume 66, Number 158 (Wednesday, August 15, 2001)]
[Rules and Regulations]
[Pages 42739-42743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20446]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 904

[SPATS No. AR-038-FOR]


Arkansas Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving an amendment to the Arkansas regulatory program (Arkansas 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). Arkansas proposed revisions and additions of 
regulations concerning definitions; areas where surface coal mining 
operations are prohibited or limited; exception for existing 
operations; procedures for compatibility findings for surface coal 
mining operations on federal lands in national forests; procedures for 
relocating or closing public roads or waiving prohibitions on surface 
coal mining operations within the buffer zone of public roads; 
procedures for waiving prohibitions on surface coal mining operations 
within the buffer zone of occupied dwellings; submission and processing 
of requests for valid existing rights determinations; director's 
obligations at time of permit application review; interpretative rule 
related to subsidence due to underground coal mining in areas 
designated by act of Congress; applicability to lands designated as 
unsuitable by Congress; exploration on land designated as unsuitable 
for surface coal mining operations; procedures: Initial processing, 
recordkeeping, and notification requirements; permit requirements for 
exploration that will remove more than 250 tons of coal or that will 
occur on lands designated as unsuitable for surface coal mining 
operations; relationship to areas designated unsuitable for mining; 
protection of publicly owned parks and historic places; relocation or 
use of public roads; road systems; public notices of filing of permit 
applications; legislative public hearing; and criteria for permit 
approval or denial. Arkansas intends to revise its program to be 
consistent with the corresponding Federal regulations and to enhance 
enforcement of the State program.

EFFECTIVE DATE: August 15, 2001.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office, Office of Surface Mining, 5100 East Skelly Drive, Suite 
470, Tulsa, Oklahoma 74135-6548. Telephone: (918) 581-6430. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Arkansas Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Arkansas 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 the Act * * *'' and 
``rules and regulations consistent with regulations issued by the 
Secretary'' pursuant to the 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 Arkansas program on November 21, 1980. You 
can find background information on the Arkansas program, including the 
Secretary's findings, the disposition of comments, and the conditions 
of approval in the November 21, 1980, Federal Register (45 FR 77003). 
You can find later actions on the Arkansas program at 30 CFR 904.10, 
904.12, 904.15, and 904.16.

II. Submission of the Amendment

    By letter dated March 1, 2001 (Administrative Record No. AR-
567.04), Arkansas sent us an amendment to its program under SMCRA and 
the Federal regulations at 30 CFR 732.17(b). Arkansas sent the 
amendment in response to our letter dated August 23, 2000 
(Administrative Record No. AR-567), that we sent to Arkansas under 30 
CFR 732.17(c). The amendment also includes changes made at Arkansas' 
own initiative. Arkansas proposed to amend the Arkansas Surface Coal 
Mining and Reclamation Code (ASCMRC). We announced receipt of the 
amendment in the April 6, 2001, Federal Register (66 FR 18216). In the 
same document, we opened the public comment period and provided an 
opportunity for a public hearing or meeting on the adequacy of the 
amendment. The public comment period closed on May 7, 2001. We did not 
receive any comments. Because no one requested a public hearing or 
meeting, we did not hold one.
    During our review of the amendment, we identified concerns about 
the definitions; submission and processing of requests for valid 
existing rights determinations; interpretative rule related to 
subsidence due to underground coal mining in areas designated by Act of 
Congress; public notices of filing of permit applications; and 
legislative public hearings. We notified Arkansas of these concerns by 
letter dated April 11, 2001, (Administrative Record No. AR-567.06).
    By letter dated April 19, 2001 (Administrative Record No. AR-
567.08), Arkansas sent us revisions to its program amendment. Based 
upon Arkansas' revisions to its amendment, we reopened the public 
comment period in the May 10, 2001, Federal Register (66 FR 23868). The 
public comment period closed on May 25, 2001. We did not receive any 
comments.

III. Director's Findings

    Following, under SMCRA and the Federal regulations at 30 CFR 732.15 
and 732.17, are the OSM Director's findings concerning the amendment to 
the Arkansas program.
    Any revisions that we do not discuss below are about minor wording 
changes, or revised cross-references and

[[Page 42740]]

paragraph notations to reflect organizational changes resulting from 
this amendment

A. Revisions to Arkansas' Regulations That Have the Same Meaning as the 
Corresponding Provisions of the Federal Regulations

    The State regulations listed in the table contain language that is 
the same as or similar to the corresponding sections of the Federal 
regulations. Differences between the State regulations and the Federal 
regulations are minor.

------------------------------------------------------------------------
                                                            Federal
                                   State regulation       counterpart
              Topic                    (ASCMRC)         regulation  (30
                                                             CFR)
------------------------------------------------------------------------
Definition of ``valid existing    Section 761.5.....  Section 761.5.
 rights''.
Areas where surface coal mining   Section 761.11....  Section 761.11.
 operations are prohibited or
 limited.
Exception for existing            Section 761.12....  Section 761.12.
 operations.
Procedures for compatibility      Section 761.13....  Section 761.13.
 findings for surface coal
 mining operations on Federal
 lands in national parks.
Procedures for relocating or      Section 761.14....  Section 761.14.
 closing a public road or
 waiving the prohibition on
 surface coal mining operations
 within the buffer zone of a
 public road.
Procedures for waiving the        Section 761.15....  Section 761.15.
 prohibitions on surface coal
 mining operations within the
 buffer zone of an occupied
 dwelling.
Submission and processing of      Section 761.16....  Section 761.16.
 requests for valid existing
 rights determination.
Director's obligations at time    Section 761.17....  Section 761.17.
 of permit application review.
Interpretative rule related to    Section 761.200...  Section 761.200.
 subsidence due to underground
 coal mining in areas designated
 by act of Congress.
Applicability of lands            Section 762.14....  Section 762.14.
 designated as unsuitable by
 Congress.
Permit requirements for           Section 776.12....  Section 772.12.
 exploration that will remove
 more than 250 tons of coal or
 that will occur on lands
 designated as unsuitable for
 surface coal mining operations.
Relationship to areas designated  Section 778.16(c).  Section 778.16(c).
 unsuitable for mining.
Protection of publicly owned      Section             Section
 parks and historic places.        780.31(a)(2).       780.31(a)(2).
Relocation or use of public       Section 780.33      Section 780.33.
 roads.                            introductory        introductory
                                   paragraph.          paragraph.
Road systems....................  Section 780.37....  Section 780.37.
Public notices of filing of       Section             Section
 permit applications.              786.11(a)(4) and    773.6(a)(1)(iv)
                                   (a)(5).             and (a)(1)(v).
Criteria for permit approval or   Section             Section
 denial.                           786.19(d)(1).       773.15(c)(2).
------------------------------------------------------------------------

    Because the above State regulations have the same meaning as the 
corresponding Federal regulations, we find that they are no less 
effective than the Federal regulations.

B. Sections 761.5  Definitions and 761.15 Public Buildings

    Due to an apparent error, Arkansas' regulations contain two 
different definitions for ``public buildings;'' one in section 761.5 
Definitions, the other in section 761.15 Public buildings. This 
occurred when the State was revising the definition of ``public 
buildings'' and inadvertently inserted a new section (section 761.15 
Public buildings) instead of modifying the existing definition of 
``public buildings'' at section 761.5 Definitions. Arkansas proposed to 
eliminate this redundancy and to avoid confusion by removing section 
761.15 ``Public buildings,'' and by replacing the definition of 
``public buildings'' in section 761.5 with the definition of ``public 
buildings'' that was found in section 761.15. We are approving this 
revision because the revised definition of ``public buildings'' in 
section 761.5 is language that we previously approved at old section 
761.15 and because the revision will eliminate any redundancy and 
confusion that may have been caused by the two definitions of ``public 
buildings'' that previously existed in the State's regulations.

C. Section 762.14  Exploration on Land Designated As Unsuitable for 
Surface Coal Mining Operations (Newly Redesignated As Section 762.15)

    Arkansas proposed to redesignate section 762.14 as new section 
762.15. We are approving this revision because it only changes the 
section number of the regulation and will not alter the approved 
language in the section.

D. Section 764.15  Procedures: Initial Processing, Recordkeeping, and 
Notification Requirements

    Arkansas proposed to revise Section 764.15(a)(7) by changing the 
name of the hearing from an ``informal conference'' to that of a 
``legislative public hearing.'' We are approving this revision because 
it only changes the name of the hearing and does not change the meaning 
or the intent of the regulation.

E. Section 786.14  Legislative Public Hearing

    Arkansas proposed to revise Section 786.14(c) by replacing the 
reference citation to 761.12(d) with a reference citation to newly 
added section 761.14(c). Arkansas also proposed to revise this 
regulation to reflect that the legislative public hearings may be used 
to meet the requirement of a public hearing if one is requested under 
section 761.14(c) where the applicant proposes to relocate or close a 
public road or to conduct surface coal mining operations within 100 
feet, measured horizontally, of the outside right-of-way line of a 
public road. The revised section reads as follows:

    (c) Legislative Public Hearings held in accordance with this 
Section may be used by the Director as the public hearing required 
under Section 761.14(c) where the applicant proposes to relocate or 
close a public road or conduct surface coal mining operations within 
100 feet, measured horizontally, of the outside right-of-way line of 
a public road.

    We are approving the revision that replaces the reference citation 
to 761.12(d) with a reference citation to newly added section 761.14(c) 
because the provisions contained in old section

[[Page 42741]]

761.12(d) remain unchanged and have been reorganized and are now 
recodified in newly added section 761.14(c). We are also approving the 
revision to section 786.14 that reflects that the public hearings, if 
requested, may be used to meet the public hearing requirement under 
section 761.14(c) where the applicant proposes to relocate or close a 
public road or to conduct surface coal mining operations within 100 
feet, measured horizontally, of the outside right-of-way line of a 
public road. We are approving this revision because it is consistent 
with the Federal regulations at 30 CFR 761.14(c) and (c)(1)-(c)(2) that 
require the regulatory authority or a public road authority that it 
designates to determine that the interests of the public and affected 
landowners will be protected. These Federal regulations also require 
that the regulatory authority must, among other things, provide 
opportunity to request a public hearing in the locality of the proposed 
operation before making this determination.

F. Section 786.19  Criteria for Permit Approval or Denial

    Arkansas proposed to delete sections 786.19(d)(4) and (d)(5) and to 
redesignate sections 786.19(d)(6) through (d)(8) as sections 
786.19(d)(4) through (d)(6). We are approving the deletion of sections 
786.19(d)(4) and (d)(5) because the provisions contained in these 
sections are contained in revised section 786.19(d)(1) via a reference 
to section 761.11. We are also approving the redesignation of sections 
786.19(d)(6) through (d)(8) as sections 786.19(d)(4) through (d)(6) 
because it will not render the Arkansas regulations less effective than 
the Federal regulations at 30 CFR 773.15(c).

G. Name Change of the Arkansas Regulatory Authority and the 
Recodification of the Arkansas Surface Coal Mining and Reclamation Act

    In a letter dated April 2, 1999, Arkansas notified us that the 
``Arkansas Department of Pollution Control and Ecology'' had its name 
changed to the ``Arkansas Department of Environmental Quality,'' 
effective March 31, 1999. Along with the name change, the general 
powers and responsibilities previously assigned to the ``Arkansas 
Department of Pollution Control and Ecology'' were transferred to the 
``Arkansas Department of Environmental Quality.'' In a letter dated 
June 9, 1999, we notified the State that it must amend its approved 
program to reflect these changes. Because of the administrative nature 
of the change, we requested that Arkansas change the references to the 
``Arkansas Department of Pollution Control and Ecology'' to references 
to the ``Arkansas Department of Environmental Quality'' in its 
regulations and/or statutes the next time the State proposed to amend 
its approved program. Arkansas responded in a letter dated June 23, 
1999, that the State had already replaced all references to the 
``Arkansas Department of Pollution Control and Ecology'' with 
references to the ``Arkansas Department of Environmental Quality'' in 
its regulations. Arkansas further responded that on April 6, 1999, the 
Arkansas Legislature passed Act 1164 approving the agency's name change 
to the ``Arkansas Department of Environmental Quality'' and revising 
all Arkansas statutes to reflect the name change.
    Also, in its June 23, 1999, letter Arkansas advised us that the 
``legislative version'' of the Arkansas Surface Coal Mining and 
Reclamation Act (Act 134 of 1979), as amended by Act 647 of 1979 has 
not existed, per se, since the effective date of Act 267 of 1987, which 
created and adopted the Arkansas Code. Effective December 31, 1987, Act 
267 codified all existing Arkansas statutes into the Arkansas Code 
Annotated (ACA) without changing the substance or meaning of any 
provision of the statutes. All the provisions of the Arkansas Surface 
Coal Mining and Reclamation Act are codified at ACA Title 15, Chapter 
58, Subchapters 1 through 5.
    We are approving the name change of the Arkansas regulatory 
authority from the ``Arkansas Department of Pollution Control and 
Ecology'' to the ``Arkansas Department of Environmental Quality.'' We 
are also approving the recodification of the Arkansas statutes from the 
``legislative version'' to the ``annotated version.'' We find that the 
changes are administrative in nature and do not render the Arkansas 
regulations less effective than the Federal regulations. Nor do the 
changes render the Arkansas statutes less stringent than the Federal 
statutes.

IV. Summary and Disposition of Comments

Federal Agency Comments

    On March 14 and May 3, 2001, under section 503(b) of SMCRA and 30 
CFR 732.17(h)(11)(i) of the Federal regulations, we requested comments 
on the amendment from various Federal agencies with an actual or 
potential interest in the Arkansas program (Administrative Record Nos. 
AR-567.05 and AR-567.09, respectively). We did not receive any 
comments.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the 
written concurrence of the EPA for those provisions of the program 
amendment that relate to air or water quality standards issued under 
the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the 
Clean Air Act (42 U.S.C. 7401 et seq.). None of the revisions that 
Arkansas proposed to make in this amendment pertain to air or water 
quality standards. Therefore, we did not ask the EPA for its 
concurrence.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record Nos. AR-567.05 and AR-
567.09). The EPA did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On March 14 and May 3, 2001, we requested comments on 
Arkansas' amendment (Administrative Record Nos. AR-567.05 and AR-
567.09, respectively), but neither entity responded to our request.

Public Comments

    We asked for public comments on the amendment, but did not receive 
any.

V. Director's Decision

    Based on the above findings, we approve the amendment as sent to us 
by Arkansas on March 1, 2001, and as revised on April 19, 2001. We 
approve the regulations that Arkansas proposed with the provision that 
they be published in identical form to the regulations sent to and 
reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 904, which codifies decisions about the Arkansas 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making the regulations effective immediately will expedite 
that process and will encourage Arkansas to bring its program into 
conformity with the Federal standards. SMCRA requires consistency of 
State and Federal standards.

[[Page 42742]]

VI. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempt 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 that 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 by OSM. Under sections 503 and 505 of SMCRA (30 
U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 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 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 (NEPA) (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. Accordingly, 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; and (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 904

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 12, 2001.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR Part 904 is amended 
as set forth below:

PART 904--ARKANSAS

    1. The authority citation for Part 904 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 904.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 904.15  Approval of Arkansas regulatory program amendments.

* * * * *

[[Page 42743]]



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                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
March 1, 2002........................  August 15, 2001........  Sections 761.5 definitions of ``valid existing
                                                                 rights'' & ``public buildings;'' 761.11-.15;
                                                                 761.16; 761.17; 761.200(a); 762.14-.15;
                                                                 764.15(a)(7); 776.12; 778.16(c); 780.31(a)(2);
                                                                 780.33; 780.37; 786.11(a)(4) & (a)(5);
                                                                 786.14(c); and 786.19(d)(1) & (d)(4)-(d)(8);
                                                                 regulatory authority name change to Arkansas
                                                                 Department of Environmental Quality; and
                                                                 recodification of the statutes to Arkansas Code
                                                                 Annotated Title 15, Chapter 58, Subchapters 1-
                                                                 5.
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[FR Doc. 01-20446 Filed 8-14-01; 8:45 am]
BILLING CODE 4310-05-P