[Federal Register Volume 69, Number 58 (Thursday, March 25, 2004)]
[Proposed Rules]
[Pages 15275-15277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6735]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-101-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: We are announcing our proposal to remove a required program
amendment from the West Virginia regulatory program under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The
required program amendment concerns stocking standards for commercial
forestry and forestry postmining land use for operations with a
variance from the requirements to restore approximate original contour
(AOC). The proposed removal of the required amendment is intended to
acknowledge actions taken by the State to render the West Virginia
program no less effective than the Federal regulations.
DATES: We will accept written comments on this amendment until 4 p.m.
(local time), on April 26, 2004. If requested, we will hold a public
hearing on the amendment on April 19, 2004. We will accept requests to
speak at a hearing until 4 p.m. (local time), on April 9, 2004.
ADDRESSES: You should mail or hand-deliver written comments and
requests to speak at the hearing to Mr. Roger W. Calhoun, Director,
Charleston Field Office at the address listed below.
You may review copies of the West Virginia program, this amendment,
a listing of any scheduled public hearings, and all written comments
received in response to this document at the addresses listed below
during normal business hours, Monday through Friday, excluding
holidays. You may receive one free copy of the amendment by contacting
OSM's Charleston Field Office.
Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of
Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East,
Charleston, West Virginia 25301, Telephone: (304) 347-7158. Fax: (304)
347-7158.
West Virginia Department of Environmental Protection, 10 McJunkin
Road, Nitro, West Virginia 25143, Telephone: (304) 759-0510.
In addition, you may review a copy of the amendment during regular
business hours at the following locations:
Office of Surface Mining Reclamation and Enforcement, Morgantown
Area Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West
Virginia 26507, Telephone: (304) 291-4004. (By Appointment Only)
Office of Surface Mining Reclamation and Enforcement, Beckley Area
Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801,
Telephone: (304) 255-5265.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations
I. Background on the West Virginia 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 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 West Virginia program on January 21, 1981.
You can find background information on the West Virginia program,
including the Secretary's findings, the disposition of comments, and
conditions of approval of the West Virginia program in the January 21,
1981, Federal Register (46 FR 5915). You can also find later actions
concerning West Virginia's program and program amendments at 30
[[Page 15276]]
CFR 948.10, 948.12, 948.13, 948.15, and 948.16.
II. Description of the Proposed Amendment
By letters dated March 14, 2000, and March 28, 2000, and electronic
mail dated April 6, 2000 (Administrative Record Numbers WV-1147, WV-
1148, and WV-1149, respectively), the West Virginia Department of
Environmental Protection (WVDEP) submitted an amendment to its program.
Among other things, the amendment added new Code of State Regulations
(CSR) 38-2-7.4 concerning standards applicable to AOC variance
operations with a postmining land use of commercial forestry and
forestry. CSR 38-2-7.4.b.1.I concerns the standards of success for the
postmining land use. We announced our approval of CSR 38-2-7.4, with
certain exceptions, on August 18, 2000 (65 FR 50409) Administrative
Record Number WV-1174).
In our August 18, 2000, Federal Register notice, we did not approve
the new tree stocking standards for commercial forestry and forestry
postmining land use because there was no evidence that the West
Virginia Division of Forestry had reviewed and approved the proposed
standards as is required by the Federal regulations at 30 CFR
816.116(b)(3)(i) (65 FR 50409, 50422). In addition, we required that
the WVDEP consult with and obtain the approval of the Division of
Forestry on the new stocking standards for commercial forestry and
forestry at CSR 38-2-7.4.b.1.I. We codified this requirement in the
Federal regulations at 30 CFR 948.16(aaaaa).
Under the Federal regulations at 30 CFR 816.116(b)(3)(i), the
approval of the stocking standards may be on a program-wide or permit-
specific basis. Since a program-wide approval had not yet been granted
by the Division of Forestry at the time of our August 18, 2000, notice,
we determined that the WVDEP must obtain approval on a permit-specific
basis until such time that it received program-wide approval by the
Division of Forestry.
By letter dated February 26, 2002, (Administrative Record Number
WV-1276), the WVDEP, Division of Mining and Reclamation submitted,
among other materials, a letter dated November 17, 2000, from the
Division of Forestry to the WVDEP. In that letter, the Division of
Forestry approved, on a statewide basis, the stocking rates at CSR 38-
2-7.4, concerning standards applicable to mountaintop removal mining
operations with a postmining land use of commercial forestry and
forestry.
Therefore, it appears that the November 17, 2000, letter from the
Division of Forestry to the WVDEP satisfies the required program
amendment at 30 CFR 948.16(aaaaa). Consequently, we are proposing to
remove the required amendment at 30 CFR 948.16(aaaaa).
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we find that the required
program amendment at 30 CFR 948.16(aaaaa) has been satisfied, it will
be removed.
Written Comments
Send your written comments to OSM at the address given above. Your
written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of
your recommendations. We may not consider or respond to your comments
when developing the final rule if they are received after the close of
the comment period (see DATES). We will make every attempt to log all
comments into the administrative record, but comments delivered to an
address other than the Charleston Field Office may not be logged in.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If individual respondents
request confidentiality, we will honor their request to the extent
allowable by law. Individual respondents who wish to withhold their
name or address from public review, except for the city or town, must
state this prominently at the beginning of their comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on
April 9, 2004. If you are disabled and need special accommodations to
attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an opportunity to speak, we will not hold a hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at the public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
will be open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the Administrative Record.
IV. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempt from review by the Office of Management and
Budget (OMB) 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
[[Page 15277]]
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 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
The basis for this determination is that our decision is on a State
regulatory program and does not involve a Federal regulation involving
Indian lands.
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 analysis performed
under various laws and executive orders for the counterpart Federal
regulations.
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 analysis performed
under various laws and executive orders for the counterpart Federal
regulations.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: February 26, 2004.
Tim L. Dieringer,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 04-6735 Filed 3-24-04; 8:45 am]
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