[Federal Register Volume 67, Number 24 (Tuesday, February 5, 2002)]
[Rules and Regulations]
[Pages 5204-5207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2747]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 901
[AL-071-FOR]
Alabama 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 Alabama regulatory program
(Alabama program) under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA or the Act). Alabama proposed revisions to and additions
of rules concerning valid existing rights. Alabama revised its program
to be consistent with the corresponding Federal regulations.
EFFECTIVE DATE: February 5, 2002.
FOR FURTHER INFORMATION CONTACT: Arthur W. Abbs, Director, Birmingham
Field Office, Office of Surface Mining, 135 Gemini Circle, Suite 215,
Homewood, Alabama 35209. Telephone: (205) 290-7282. Internet:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Alabama 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 Alabama 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 Alabama program on May 20, 1982. You can
find background information on the Alabama program, including the
Secretary's findings, the disposition of comments, and the conditions
of approval in the May 20, 1982, Federal Register (47 FR 22062). You
can find later actions on the
[[Page 5205]]
Alabama program at 30 CFR 901.15 and 901.16.
II. Submission of the Amendment
By letter dated August 28, 2001 (Administrative Record No. AL-
0647), Alabama sent us an amendment to its program under SMCRA and the
Federal regulations at 30 CFR 732.17(b). Alabama sent the amendment in
response to our letter dated August 23, 2000 (Administrative Record No.
AL-0644), that we sent to Alabama under 30 CFR 732.17(c).
We announced receipt of the proposed amendment in the October 18,
2001, Federal Register (66 FR 52879). 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 November 19, 2001. Because no one requested a public
hearing or meeting, we did not hold one. We did not receive any
comments.
During our review of the amendment, we identified concerns about a
number of editorial inconsistencies, cross-reference errors, and
wording ambiguities. We notified Alabama of these concerns by letter
dated December 4, 2001 (Administrative Record No. AL-0652). However,
because none of these concerns were substantive in nature, we are
proceeding with this final rule.
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 Alabama
program.
Any revisions that we do not discuss below concern minor wording
changes or revised cross-references and paragraph notations to reflect
organizational changes resulting from this amendment.
A. Revisions to Alabama's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations
The State rules listed in the table below 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
Topic State rule counterpart
regulation
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Definition of significant 880-X-2A-.06....... 30 CFR 761.5
recreational, timber,
economic, or other values
incompatible with surface coal
mining operations.
Definition of valid existing 880-X-2A-.06....... 30 CFR 761.5
rights.
Areas where surface coal mining 880-X-7B-.06(a) 30 CFR 761.11(a)
operations are prohibited or through (g). through (g)
limited.
Exception for existing 880-X-7B-.07....... 30 CFR 761.12
operations.
Procedures for relocating or 880-X-7B-.09....... 30 CFR 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 880-X-7B-.10....... 30 CFR 761.15
prohibition of surface coal
mining operations within the
buffer zone of an occupied
dwelling.
Submission and processing of 880-X-7B-.11....... 30 CFR 761.16
requests for valid existing
rights.
Regulatory authority 880-X-7B-.12....... 30 CFR 761.17
obligations at time of permit
application review.
General requirements for coal 880-X-8C-.05(1)(g). 30 CFR
exploration on lands 772.12(b)(14)
designated unsuitable for
surface mining operations.
Approval or Disapproval of 880-X-8C-.06(2)(e). 30 CFR
exploration applications. 772.12(d)(2)(iv)
Relationship to areas 880-X-8D-.08(3).... 30 CFR 778.16(c)
designated unsuitable for
mining.
Protection of public parks and 880-X-8F-.14(1)(2). 30 CFR
historic places. 780.31(a)(2)
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Because the above State rules have the same meaning as the
corresponding Federal regulations, we find that they are no less
effective than the Federal regulations.
B. Revisions to Alabama's Rules That Are Not the Same as the
Corresponding Provisions of the Federal Regulations
Alabama proposes to add a new Rule 880-X-7B-.08 to describe the
procedures applicants for surface coal mining permits and the
regulatory authority must follow when an applicant intends to claim the
exception provided in Rule 880-X-7B-.06(b) to conduct surface coal
mining operations on Federal lands within a national forest.
Specifically, paragraph (a) provides that an applicant must request the
Alabama Surface Mining Commission (ASMC) to obtain the Secretarial
findings required by Rule 880-X-7B-.06. Paragraph (b) allows an
applicant to submit this request to the ASMC before preparing and
submitting an application for a permit or permit revision, and
describes what the request must contain. Finally, paragraph (c)
provides that when a proposed surface coal mining operation or proposed
permit revision includes Federal lands within a national forest, the
regulatory authority may not issue a permit or approve a permit
revision until after the Secretary of the Interior makes the findings
required in Rule 880-X-7B-.6(b).
We find that the provisions of this section are substantively
identical to those in the counterpart Federal regulation at 30 CFR
761.13, with one exception. The Federal regulation at 30 CFR 761.13
requires applicants to submit their requests for the Secretarial
findings required by 30 CFR 761.11(b) directly to OSM. Under Alabama's
rule, applicants must submit their request to the ASMC. We interpret
Alabama's provision to mean that the ASMC will forward such requests to
OSM so that the necessary Secretarial findings can be obtained. Thus,
Alabama's provision merely adds an additional responsibility for the
regulatory authority. It does not affect the essential provisions of
the rule. Therefore, we find that 880-X-7B-.08 is no less effective
than the Federal regulation at 30 CFR 761.13, and we are approving 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 September 18, 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 Alabama program (Administrative Record No. AL-0648).
The Fish and Wildlife Service (FWS) responded on October 15, 2001
[[Page 5206]]
(Administrative Record No. AL-0650), and stated that it had no
objection to the proposed revisions and additions. The Mine Safety and
Health Administration (MSHA) also responded on October 18, 2001
(Administrative Record No. AL-0651), and stated that it did not have
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 Alabama
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 No. AL-0648). 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 September 18, 2001, we requested comments on Alabama's
amendment (Administrative Record No. AL-0648), but neither responded to
our request.
V. Director's Decision
Based on the above findings, we approve the amendment Alabama sent
to us on August 28, 2001.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 901, which codify decisions concerning the Alabama
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 demonstrates 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 taking 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.
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
[[Page 5207]]
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 901
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 22, 2002.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR Part 901 is amended
as set forth below:
PART 901--ALABAMA
1. The authority citation for Part 901 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 901.15 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 901.15 Approval of Alabama regulatory program amendments.
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Original amendment submission date Date of final publication Citation/description
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* * * * * *
*
August 28, 2001......................... February 5, 2002........... ASMC Rules 880-X-2A-.06; 7B-.06(a)
through (g), .07 through .12; 8C-
.05(1)(g), .06(2)(e); 8D-.08(3); and 8F-
.14(1)(2).
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[FR Doc. 02-2747 Filed 2-4-02; 8:45 am]
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