[Federal Register Volume 67, Number 232 (Tuesday, December 3, 2002)]
[Rules and Regulations]
[Pages 71826-71832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30607]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 924
[MS-017-FOR]
Mississippi Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are approving an amendment to the Mississippi regulatory program
(Mississippi program) under the Surface Mining Control and Reclamation
Act of 1977 (SMCRA). Mississippi proposed revisions to and additions of
rules about 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.
EFFECTIVE DATE: December 3, 2002.
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
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
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 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 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
Mississippi program at 30 CFR 924.10, 924.15, 924.16, and 924.17.
II. Submission of the Amendment
By letter dated September 28, 2001 (Administrative Record No. MS-
0388), Mississippi sent us an amendment to its 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
[[Page 71827]]
sent to Mississippi in accordance with 30 CFR 732.17(c). Mississippi
also sent the amendment in response to required program amendments at
30 CFR 924.16(i) and (l). Finally, the amendment included changes made
at Mississippi's own initiative.
We announced receipt of the proposed amendment in the November 2,
2001, Federal Register (66 FR 55611). 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 December 3, 2001. Because no one requested a public
hearing or meeting, we did not hold one. We received comments from one
State agency.
During our review of the amendment, we identified concerns relating
to the definition of ``immediate mining area'' and provisions
concerning limited use vehicular pathways. We notified Mississippi of
these concerns by letter dated January 23, 2002 (Administrative Record
No. MS-0390). By letter dated July 22, 2002, Mississippi sent us a
revised amendment (Administrative Record No. MS-0394). Based upon
Mississippi's revisions to its amendment, we reopened the public
comment period in the September 6, 2002, Federal Register (67 FR
56967). The public comment period closed on September 23, 2002. We did
not receive any comments.
Also during our review, we identified editorial concerns relating
to Mississippi's revegetation success standards. We notified
Mississippi of these concerns by telephone on September 10, 2002
(Administrative Record No. MS-0398). By letter dated September 12,
2002, Mississippi sent us revisions to its amendment (Administrative
Record No. MS-0397). Because the revisions merely clarified certain
provisions of Mississippi's amendment, we did not reopen the public
comment period.
III. OSM's Findings
Following, under SMCRA and the Federal regulations at 30 CFR 732.15
and 732.17, are our findings concerning the amendment to the
Mississippi program. Any revisions that we do not discuss below are
minor wording changes, or revised cross-references and paragraph
notations to reflect organizational changes resulting from this
amendment.
A. Revisions to Mississippi's Rules That Are Substantively the Same as
the Corresponding Provisions of the Federal Regulations
The State rules 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 rules and the Federal
regulations are minor.
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Federal counterpart
Topic State rule regulation
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Areas where mining is Section 1105........ 30 CFR 761.11
prohibited or limited.
Submission and processing of Section 1106........ 30 CFR 761.16
requests for valid existing
rights determinations.
Valid existing rights review Section 3114........ 30 CFR 761.17
at time of permit
application review.
Permit requirements for Section 2103(b)(14), 30 CFR
exploration removing more (c), (d), (e), and 772.12(b)(14), (c),
than 250 tons of coal, or (f). (d), and (e)
occurring on lands
designated as unsuitable
for surface coal mining
operations.
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Because the above State rules are substantively the same as the
corresponding Federal regulations, we find that they are no less
effective than the Federal regulations.
B. Revisions to Mississippi's Rules That Are Not the Same as the
Corresponding Provisions of the Federal Regulations
1. Section 105, Definition of ``Valid Existing Rights''
Mississippi revised its definition of ``valid existing rights'' to
closely follow the Federal definition at 30 CFR 761.5. However,
Mississippi's definition of ``valid existing rights'' includes language
in paragraph (a) specifying that valid existing rights must have been
in existence on August 3, 1977, unless, subsequent to the adoption of
the definition, section 53-9-71(4) of the Mississippi Surface Coal
Mining and Reclamation Law is amended to delete that requirement.
Mississippi's definition further provides that if section 53-9-71 of
the Mississippi Surface Coal Mining and Reclamation Law is amended to
delete the requirement that a right exist as of August 3, 1977, then
the right must have been in existence at the time the land came under
the protection of 30 CFR 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. 53-
9-71, or section 1105 of the Mississippi regulations. In a letter dated
September 28, 2001 (Administrative Record No. MS-0388), Mississippi
explained that section 53-9-71(4) of Mississippi's Surface Coal Mining
and Reclamation Law provides that valid existing rights must have
existed on or before August 3, 1977. Mississippi further explained that
it may suggest a statutory change to the Mississippi Legislature to
bring the state law in line with the Federal statute and regulations.
Mississippi's definition of ``valid existing rights'' provides that
a person claiming valid existing rights must demonstrate valid existing
rights in the same manner required by the Federal definition at 30 CFR
761.5, except that those rights must have existed on August 3, 1977.
The Federal regulations require that valid existing rights must have
existed on the date that the land came under the protection of 30 CFR
761.11 or 30 U.S.C 1272(e)--a date that could occur on or after August
3, 1977. Because rights that exist under the Mississippi rules would
also exist under the Federal regulations, we find that Mississippi's
proposed definition is no less effective than the Federal definition at
30 CFR 761.5. Therefore, we are approving it.
2. Section 1103, Responsibility
Mississippi revised the language in this section by adding the
phrase, ``a valid existing rights determination made by OSM'' after the
reference to ``30 U.S.C. 1272(e).'' Mississippi also replaced the
phrase, ``this Chapter'' with the phrase, ``these regulations.''
As revised, section 1103 reads as follows:
The Permit Board shall comply with Chapters 17 to 37 and determine
whether an application for a permit must be denied because surface
coal mining operations on those lands are prohibited or limited by
Sec. 522(e) of SMCRA, 30 U.S.C. 1272(e), a valid existing rights
determination made by OSM, Sec. 53-9-71, these regulations, or a
designation of the Commission.
The Federal regulations at 30 CFR 761.3 authorizes a State
regulatory authority to prohibit or limit surface coal mining
operations on or near
[[Page 71828]]
certain private, Federal, and other public lands, subject to valid
existing rights and except for those operations which existed on August
3, 1977. Therefore, we find that Mississippi's revisions to section
1103 are not inconsistent with 30 CFR 761.3, and we are approving it.
3. Section 1107, Procedures
a. At paragraph (a), Mississippi added language to require the
Permit Board to determine whether proposed surface coal mining
operations are limited or prohibited under section 1105 prior to the
submission of a complete application, if the applicant requests the
Permit Board to do so under section 1106. We find that the revision of
this section is not inconsistent with the Federal provisions at 30 CFR
761.16, which allow an applicant to request that the regulatory
authority make a valid existing rights determination prior to preparing
and submitting an application for a permit or boundary revision.
Therefore, we are approving it.
b. Mississippi revised the first sentence of paragraph (b) to
provide that where a proposed operation would be located on any lands
listed in section 1105, the Permit Board must deny the permit if the
applicant has no valid existing rights for the area. We find that
Mississippi's revisions are no less effective than the Federal
provisions at 30 CFR 773.15(c)(ii), which provides that no permit
application can be approved unless the application affirmatively
demonstrates and the regulatory authority finds in writing that the
proposed permit area is not within an area subject to the prohibitions
of 30 CFR 761.11. Therefore, we are approving it.
c. Mississippi revised paragraph (f) to provide that the Permit
Board will follow the procedures required by section 3114(d) of
Mississippi's rules 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. Section
3114(d) of Mississippi's rules is substantively the same as the Federal
provisions at 30 CFR 761.17(d), which describe the procedures for joint
approval of surface coal mining operations that will adversely affect
publicly owned parks or historic places. Because Mississippi's revision
merely directs the reader to the procedures found in 3114(d), we find
that Mississippi's revision at section 1107(f) is no less effective
than the Federal provisions at 30 CFR 761.17(d), and we are approving
it.
d. Finally, Mississippi removed paragraph (h), which provided that
determinations made by the Permit Board concerning whether a person has
valid existing rights are subject to administrative and judicial review
under Miss. Code Ann. 53-9-77. Paragraph (h) also provided that
determinations made by the Permit Board concerning whether surface coal
mining operations existed on the date of enactment are subject to
administrative and judicial review under Miss. Code Ann. 53-9-77.
Section 1106(g) of Mississippi's revised rules provides that a
determination that valid existing rights do or do not exist is subject
to administrative and judicial review under section 53-9-77 of the
Mississippi Surface Coal Mining and Reclamation Law. Therefore, we find
that the removal of the portion of section 1107(h) concerning
administrative and judicial review of valid existing rights
determinations does not render the Mississippi rules less effective
than the Federal regulations, and we are approving it.
On December 17, 1999, we removed the portion of former 30 CFR
761.12(h) that provided for administrative appeals of existing
operations determinations. In the preamble, we explained that because
the exception for existing operations in 30 CFR 761.12 does not require
any affirmative action or decision on the part of the permittee or the
regulatory authority, no action or decision exists to appeal (64 FR
70804). Therefore, Mississippi's removal of the portion of section
1107(h) concerning administrative and judicial review of existing
operations determinations is consistent with the removal of our
counterpart provision at former 30 CFR 761.12(h), and we are approving
it.
C. Revisions to Mississippi's Rules With No Corresponding Federal
Regulations
1. Section 105, Definition of ``Immediate Mining Area''
Mississippi added a definition for ``immediate mining area'' to
read as follows:
Immediate Mining Area--as used in the definition of Road in this
section, means an area of mining activity or pre-mining construction
activity covered by a construction stormwater pollution prevention
plan or, after construction is completed, situated so that surface
water run-off will be routed to an approved water control structure
such as a sedimentation pond. Routes of travel within the immediate
mining area will be either: consumed by mining; reclaimed; or have
design plans submitted for approval as permanent postmine features
prior to phase II bond release.
No Federal counterpart to this definition exists. However, in the
preamble to our November 8, 1988, Federal Register (53 FR 44356)
concerning roads, we discussed what the phrase meant. In that
discussion, we incorporated two concepts into the interpretation of
``immediate mining area''--frequent changes and drainage control.
Several commenters suggested that the term be interpreted consistent
with drainage control since the necessary environmental protection
would be provided and it would provide an exact meaning of the term. We
stated that our view is in part consistent with the commenters
concerning the exclusion of roads within the permit area for which
drainage control is otherwise provided. We went on to explain that
because all of the other standards of section 515 of SMCRA would also
necessarily apply to temporary routes not considered roads, the
protection required by section 515(b)(17) of SMCRA would still be
achieved. However, we retained the concept of frequent changes in order
to ensure that all roads are adequately reclaimed. We stated that all
routes subject to frequent changes would be obliterated during the
mining process, but routes no longer changing need to be included in
the definition of road to ensure that they are adequately designed,
constructed, maintained, and reclaimed. No further guidance in
interpretation of the phrase ``frequent changes'' was provided.
Routes of travel in large mines over relatively flat terrain, such
as the mine in Mississippi, move as operations move, and are therefore
subject to frequent change. We believe that, considering the nature of
mining operations in Mississippi, it would not be unreasonable or an
abuse of discretion for the State to consider the immediate mining area
as matching the area where drainage control has been established
through construction of siltation structures so long as mechanisms are
in place to ensure that when travel routes are no longer changing, they
are either (1) Reclaimed with vegetation established or (2) approved as
roads as mining and reclamation operations are completed, such as by
the time of phase II bond release. We believe that these mechanisms
would ensure full and contemporaneous reclamation, and ensure that
travel routes not reclaimed as part of the general reclamation of an
area would be included in the definition of a road.
[[Page 71829]]
By letter dated January 23, 2002 (Administrative Record No. MS-
0390), we notified Mississippi that its definition lacked the
mechanisms to ensure that all travel routes are either reclaimed or
approved as roads as mining and reclamation operations are completed.
By letter dated July 22, 2002 (Administrative Record No. MS-0394),
Mississippi sent a revision to its definition to add a provision
requiring routes of travel within the immediate mining area to be (1)
Consumed by mining; (2) reclaimed; or (3) have design plans submitted
for approval as permanent postmine features prior to phase II bond
release. Because Mississippi's definition of ``immediate mining area''
provides mechanisms to ensure that all travel routes are either (1)
reclaimed with vegetation established or (2) approved as roads prior to
phase II bond release, we find that it is not inconsistent with the
requirements of the Federal program, and we are approving it.
2. Section 53111, Roads: General
Mississippi added new paragraphs (a)(4) and (5) to read as follows:
(4) A limited use vehicular pathway is not classified as a road
if it meets all the following:
(i) the pathway has no improved roadbed, which means it has no
constructed crown, compacted base, roadway ditches, or surface
material added to enhance use as a pathway which precludes
vegetation;
(ii) the pathway has no bridges or other cross-drainage
structures;
(iii) the pathway is not located in and/or does not cross or
ford any channel of an intermittent or perennial stream;
(iv) the pathway has only limited clearing, if any, of woody
vegetation, typically wide enough only for the safe passage of one
vehicle;
(v) the pathway is located so as to control erosion and
siltation; and
(vi) maintenance of the pathway is limited to maintenance
consisting only of the occasional filling of potholes and ruts in
order to remain passable.
(5) A limited use vehicular pathway:
(i) shall be reclaimed with vegetation sufficient to prevent
erosion prior to phase II bond release;
(ii) along with the area it disturbs, is a mining related
activity and must be covered by an appropriate reclamation bond;
(iii) 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. 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.
No Federal counterpart to these provisions exists. However, we
recognize that in flat agricultural areas such as those that occur in
the mining areas of Mississippi, occasional overland travel that occurs
repeatedly in the same place will create tracks that can be called
pathways, trails, lanes, etc., even though there has been no improved
roadbed. We further recognize that such pathways will need occasional
repair or maintenance to remain passable, and that such maintenance
does not necessarily make the pathway a road. We do not believe it
would be unreasonable or an abuse of discretion for the State to exempt
such pathways from regulation as a ``road'' so long as the State does
not allow the pathways to have any characteristics of ancillary or
primary roads.
By letter dated January 23, 2002 (Administrative Record No. MS-
0390), we notified Mississippi that its provisions at 53111(a)(4) and
(5) could allow limited use vehicular pathways to have some
characteristics of ancillary roads. By letter dated July 22, 2002
(Administrative Record No. MS-0394), Mississippi revised its provisions
at section 53111(a)(4) and (5) by removing language that would have
allowed limited use vehicular pathways to have culverts, be located in
and/or cross or ford channels of intermittent or perennial streams, and
include water bars across the pathway and drainage ways incidental to
the area. Because Mississippi's provisions at 53111(a)(4) and (5) do
not allow limited use vehicular pathways to have any characteristics of
ancillary or primary roads, we find that it is not inconsistent with
the requirements of the Federal regulations, and we are approving it.
C. Section 6511, Formal Review of Citations
Mississippi revised 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's revision at section 6511(c) is substantively the same
as the Federal regulation at 30 CFR 4.1261. Further, the revision
satisfies the requirements placed on the Mississippi program at 30 CFR
924.16(l). Therefore, we are approving Mississippi's revision and
removing the required program amendment at 30 CFR 924.16(l).
D. Revegetation Success Guidelines
1. Section 53103, Revegetation: Standards for Success
Mississippi redesignated 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 (b)(4).
Mississippi also revised paragraph (a) to incorporate by reference a
revegetation success guidance document titled ``Appendix A,
Revegetation Success Standards.'' Finally, Mississippi added language
in paragraph (a) to provide that if a postmining land use is selected
and approved by the Permit Board for which standards are not specified
in Appendix A, or if Appendix A does not specify a more specific
standard of success for a postmining land use, the general standards of
success found at redesignated paragraph (b) will apply.
The Federal regulations at 30 CFR 816.116(a)(1) require that each
regulatory authority select revegetation success standards and
statistically valid sampling techniques for measuring revegetation
success and include them in its approved regulatory program. We find
that Mississippi's incorporation by reference of Appendix A into its
rules at 53103(a) meets the requirements of 30 CFR 816.116(a)(1), and
we are approving it. Further, we find that Mississippi's Appendix A
provides success standards for the most probable types of postmining
land use that an operator might choose. It would be highly unlikely
that an operator would select a postmining land use that was not
covered by Appendix A. If an operator did choose a postmining land use
that was not covered under Appendix A, Mississippi would need to
develop success standards for that land use and submit them to us for
approval. Therefore, we are approving Mississippi's provision at
section 53103(a).
2. Appendix A, Revegetation Success Standards
Mississippi added 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.
The Federal regulations at 30 CFR 816.116(a)(1) require that each
regulatory authority select revegetation success standards and
statistically valid sampling techniques for measuring revegetation
success and include them in its approved regulatory program.
[[Page 71830]]
Mississippi developed its revegetation success guidelines to satisfy
this requirement. The guidelines include revegetation success standards
and statistically valid sampling techniques for measuring revegetation
success of reclaimed commercial forest lands, croplands, industrial or
commercial lands, pasture and previously mined areas, recreation lands,
residential lands, and wildlife habitats in accordance with
Mississippi's counterparts to the Federal regulations at 30 CFR
816.116. The guidelines also include revegetation success standards and
statistically valid sampling techniques for restoring soil productivity
of prime farmland soils in accordance with Mississippi's counterparts
to the Federal regulations at 30 CFR 823.15. Mississippi's standards,
criteria, and parameters for revegetation success reflect the extent of
cover, species composition, and soil stabilization required in the
Federal regulations at 30 CFR 816.111. As required by the Federal
regulations at 30 CFR 816.116(a)(2) and (b) and 823.15, Mississippi's
revegetation success standards include criteria representative of
unmined lands in the area being reclaimed to evaluate the appropriate
vegetation parameters of ground cover, production, or stocking suitable
to the approved postmining land uses. Mississippi's guidelines specify
the procedures and techniques to be used for sampling, measuring, and
analyzing vegetation parameters. Ground cover, production, and stocking
suitable to the approved postmining land uses, except prime farmland,
are considered equal to the approved success standard when they are not
less than 90 percent of the success standard. The average production of
crops for prime farmland soils must equal or exceed the average
production of the same crops for the same or similar unmined prime
farmland soils. Sampling techniques for measuring success use a 90-
percent statistical confidence interval for all land uses. We found
that use of these procedures and techniques will ensure consistent,
objective collection of vegetation data.
For the above reasons, we find that the revegetation success
standards and statistically valid sampling techniques for measuring
revegetation success contained in Mississippi's revegetation success
guidelines satisfy the requirements of 30 CFR 816.116(a)(1) and 823.15.
The guidelines also satisfy the requirement placed on the Mississippi
program at 30 CFR 924.16(i), and we are removing it.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment, but did not receive
any.
Federal Agency Comments
On October 11, 2001, and July 30, 2002, under 30 CFR
732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on
the amendment from various Federal agencies with an actual or potential
interest in the Mississippi program (Administrative Record Nos. MS-0395
and MS-0396, respectively). We did not receive any comments.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), we are required to get a 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
Mississippi proposed to make in this amendment pertain to air or water
quality standards. Therefore, we did not ask the EPA for its
concurrence.
On October 11, 2001, and July 30, 2002, under 30 CFR
732.17(h)(11)(i), we requested comments on the amendment from the EPA
(Administrative Record Nos. MS-0395 and MS-0396, respectively). 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 October 11, 2001, and July 30, 2002, we requested
comments on Mississippi's amendment (Administrative Record Nos. MS-0395
and MS-0396, respectively). The SHPO responded on November 20, 2001
(Administrative Record No. MS-0389). The SHPO stated that sections
1105(c), 1106(e)(2)(ii), 1107(f), and 3114(d)(1) of Mississippi's rules
should be modified to include any place that is eligible for the
National Register of Historic Places as well as those that have already
been included in the Register. Also, the SHPO stated that at section
2103(b)(8), Mississippi should add another item to require applications
for exploration permits to contain a statement from the SHPO that
assesses the need for a cultural resources survey.
On September 24, 2002 (Administrative Record No. MS-0399), we sent
a letter to the SHPO informing them that Mississippi's rules are
consistent with Section 522(e)(3) of SMCRA and Part 761 of the Federal
regulations. We also explained that even though SMCRA and the Federal
regulations do not require consideration of properties eligible for
listing on the National Register of Historic Places when making a
determination of whether a person has valid existing rights to mine in
areas where surface coal mining operations are normally prohibited or
limited, the permit application requirements of the Federal regulations
do require this consideration for these areas. Finally, we informed the
SHPO that Mississippi did not propose changes to section 2103(b)(8),
and that we've previously found that Mississippi's provisions at
section 2103(b)(8) are substantively identical, and no less effective
than, the Federal regulations at 30 CFR 772.12(b)(8).
V. Director's Decision
Based on the above findings, we approve the amendment Mississippi
sent to us on September 28, 2001, and as revised on July 22, 2002, and
September 12, 2002. We approve the rules that Mississippi proposed with
the provision that the rules be published in identical form to the
rules sent to and reviewed by OSM and the public.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 924, which codify decisions concerning the Mississippi
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 a State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this rule effective immediately will expedite that
process. SMCRA requires consistency of State and Federal standards.
VI. Procedural Determinations
Executive Order 12630--Takings
In this rule, the State is adopting valid existing rights standards
that are similar to the standards in the Federal definition at 30 CFR
761.5. Therefore, this rule has the same takings implications as the
Federal valid existing rights rule. The takings implications assessment
for the Federal valid existing rights rule appears in Part XXIX.E. of
the preamble to that rule. See 64 FR 70766, 70822-27, December 17,
1999. The other provisions in the rule based on counterpart Federal
regulations do not have takings implications. This determination is
[[Page 71831]]
based on the analysis performed for the counterpart Federal
regulations. The revisions made at the initiative of the State have
also been reviewed and a determination made that they do not have
takings implications. This determination is based on the fact that the
provisions will have no substantive effect on the regulated industry.
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 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 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
the Federal regulations at 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 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 pursuant to SMCRA.
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
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies 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. 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 an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. 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 did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 924
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 17, 2002.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR Part 924 is amended
as set forth below:
PART 924--MISSISSIPPI
1. The authority citation for Part 924 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 924.15 is amended in the table by adding a new entry in
chronological order by Date of final publication to read as follows:
Sec. 924.15 Approval of Mississippi regulatory program amendments.
* * * * *
[[Page 71832]]
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Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
September 28, 2001.................... December 3, 2002.............. Sections 105; 1103; 1105; 1106; 1107(a),
(b), (f), and (h); 2103(b)(14), (c),
(d), (e), and (f); 3114; 53103(a) and
(b); 53111(a)(4) and (5); 6511(c); and
Appendix A: Revegetation Success
Guidelines
----------------------------------------------------------------------------------------------------------------
Sec. 924.16 [Amended]
3. Section 924.16 is amended by removing and reserving paragraphs
(i) and (l).
4. Section 924.17 is amended by revising the section heading to
read as follows:
Sec. 924.17 State regulatory program provisions and amendments not
approved.
[FR Doc. 02-30607 Filed 12-2-02; 8:45 am]
BILLING CODE 4310-05-P