[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.

------------------------------------------------------------------------
                                                            Federal
             Topic                    State rule          counterpart
                                                          regulation
------------------------------------------------------------------------
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)
------------------------------------------------------------------------

    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]
BILLING CODE 4310-05-P