[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.
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Federal
State regulation counterpart
Topic (ASCMRC) regulation (30
CFR)
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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).
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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.
* * * * *
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Date of final
Original amendment submission date publication Citation/description
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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