[Federal Register Volume 71, Number 21 (Wednesday, February 1, 2006)]
[Rules and Regulations]
[Pages 5548-5552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-883]
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Part IV
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Part 925
Termination of Federal Enforcement for Parts of the Missouri Permanent
Regulatory Program and Return of Full Regulatory Authority to the State
of Missouri; Final Rule
Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 /
Rules and Regulations
[[Page 5548]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 925
[Docket No. MO-738]
Termination of Federal Enforcement for Parts of the Missouri
Permanent Regulatory Program and Return of Full Regulatory Authority to
the State of Missouri
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are announcing our decision under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act) to terminate direct Federal
enforcement for those parts of the Missouri permanent regulatory
program (Missouri program) for which we substituted Federal
enforcement. We announced our decision to substitute Federal
enforcement for parts of the Missouri program on August 22, 2003. On
June 2, 2005, the Governor of Missouri petitioned us to consider
returning to the Missouri Land Reclamation Commission (MLRC) the
authority to enforce those parts of the Missouri program for which we
substituted Federal enforcement. The Missouri Land Reclamation Program
(MLRP), within the Missouri Department of Natural Resources (MDNR),
implements and enforces the Missouri program for the MLRC. Based on the
Missouri Governor's petition for return of the Missouri program and
MLRP's completion of the required remedial actions, we are terminating
Federal enforcement for those parts of the Missouri program for which
we substituted Federal enforcement and returning full enforcement
authority to Missouri. This document also removes those sections of the
Federal regulations that address: Direct Federal enforcement for parts
of the Missouri program; the remedial actions required of Missouri to
regain full enforcement authority; and the requirements and procedures
for terminating direct Federal enforcement.
DATES: Effective Date: February 1, 2006.
FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Chief, Alton Field
Division. Telephone: (618) 463-6460. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Missouri Program
II. OSM's Findings on Missouri's Responses to Required Remedial Actions
III. Summary and Disposition of Comments
IV. OSM's Decision
V. Procedural Determinations
I. Background on the Missouri 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 this Act . . .; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this 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 Missouri program on November 21, 1980. You
can find background information on the Missouri program, including the
Secretary's findings, the disposition of comments, and conditions of
approval, in the November 21, 1980, Federal Register (45 FR 77017). You
can also find later actions concerning the Missouri program and program
amendments at 30 CFR 925.10, 925.12, 925.15, 925.16, 925.17, 925.18,
and 925.19.
On June 19, 2003, MLRP notified us that the Missouri Legislature
passed House Bill (HB) 6 that appropriated funds for the Missouri
program. In HB 6, the Missouri Legislature did not fully fund the
Missouri program for the period beginning July 1, 2003, and ending June
30, 2004. The Missouri Legislature only appropriated funds for bond
forfeiture reclamation activities. The Governor of Missouri signed the
appropriation bill on May 30, 2003 (Administrative Record No. MO-664).
On July 2, 2003, we met with the MLRP at the Missouri Department of
Natural Resources' office in Jefferson City, Missouri (Administrative
Record No. MO-664.1). During the meeting, MLRP made a presentation
describing the recently approved appropriation bill. HB 6 contained a
severe cut in general revenue dollars available as State matching funds
for the regulatory program. MLRP advised us that the moneys that were
available for the regulatory program could only be used for bond
forfeiture reclamation activities. Also, MLRP advised us that the State
Legislature appropriated Federal funds for the abandoned mine land
reclamation (AMLR) program. In addition, MLRP explained that as of July
18, 2003, existing regulatory program staff, with the exception of four
full-time employees, would be transferred to other programs and that
MLRP would not be able to implement and maintain its inspection,
enforcement, permitting, or bond release responsibilities under the
currently approved Missouri program. The four full-time employees would
perform the bond forfeiture reclamation activities that were authorized
by the State Legislature. MLRP indicated that it would try to gain full
program funding from the Missouri Legislature for its 2005 fiscal year
(FY).
On July 21, 2003, the Governor of Missouri notified us that the
State of Missouri was experiencing difficult budget and revenue
shortfalls (Administrative Record No. MO-664.3). As a result of the
revenue shortfalls, he requested assistance with permit reviews,
inspection activities, and general oversight of the active coal mining
operations in the State. He indicated that Missouri had adequate
funding and staff available to maintain design and reclamation efforts
for bond forfeiture sites, as well as sufficient funding and staff to
maintain the AMLR program, including the emergency program. He also
indicated that he was hopeful his request would be temporary and that
he would continue to work with the Legislature in an attempt to assure
adequate funding for all of Missouri's regulatory program
responsibilities.
On August 4, 2003, we notified the Governor of Missouri that we
were obligated, in accordance with 30 CFR 733.12(e), to substitute
Federal enforcement for parts of the Missouri program. We cited
Missouri's failure to fund and staff the Missouri program in several
areas including inspection, enforcement, permitting, and bonding
activities (Administrative Record No. MO-664.4).
In accordance with the provisions of 30 CFR 733.12(f), we announced
our decision, effective August 22, 2003, to institute direct Federal
enforcement for those parts of the Missouri program that were not fully
funded and staffed. We suspended the authority of Missouri to enforce
all portions of the Missouri program except bond forfeiture reclamation
activities. We determined that MLRP had sufficient funding and staff to
implement and maintain bond forfeiture reclamation activities. We did
not provide additional grant funds to the MLRP for initiating new
projects under the approved Missouri AMLR program under Title IV of
SMCRA. We withheld further AMLR grant awards in accordance with 30 CFR
886.18(a)(3),
[[Page 5549]]
which requires us to terminate AMLR grants if an agency fails to
implement, enforce, or maintain any part of an approved State
regulatory program. With this substitution of Federal enforcement
authority, we outlined a process, including remedial actions, by which
Missouri could regain full authority for its program (68 FR 50944).
On April 15, 2004, we clarified our substitution of Federal
enforcement for parts of the Missouri program and made findings on the
status of the Missouri program (69 FR 19927).
On May 3, 2004, MLRP notified us that the Missouri Legislature
failed to fully fund the Missouri program for the period beginning July
1, 2004, and ending June 30, 2005 (Administrative Record No. MO-
664.22). In the same letter, MLRP outlined its financial and
organizational plans to submit a request to its division and department
legislative staff to propose funding and staffing that would be needed
to reassume authority of the complete active coal regulatory program
beginning July 1, 2005. On May 25, 2004, we notified MLRP that based on
its May 3, 2004, submittal, we would continue the current Federal
substitution plan for one more year (Administrative Record No. MO-
664.24).
By letter dated May 2, 2005, MLRP notified us that the Director of
the MDNR had agreed to seek full return of the regulatory program to
Missouri. MLRP also requested a meeting with us to discuss the plan for
the return of the program to Missouri. MLRP noted that the State budget
includes the necessary funding and staffing allocations and that it
plans to use remaining past coal fee funds to match the Federal
regulatory grant for FY 2006 (Administrative Record No. MO-664.39).
By letter dated May 12, 2005, we advised MLRP that before Missouri
can reassume full authority to implement and enforce the Missouri
program, MLRP must complete the remedial measures specified in 30 CFR
925.18. In accordance with 30 CFR 925.18(c), we requested that MLRP
submit a detailed description of the past coal fee funds that it
proposed to use to match the Federal regulatory grant. We also
requested that MLRP provide us with a Missouri Attorney General's
opinion on the legality of using these funds for implementation of its
permanent regulatory program (Administrative Record No. MO-664.40).
On May 26, 2005, we met with the Deputy Director of MDNR to discuss
(1) funding; (2) current staff for the forfeiture program and AMLR
plan; (3) cooperative agreement funding beginning July 1, 2005, and
ending on December 31, 2005, or until we approve or disapprove the
return of authority to Missouri; (4) procedural matters; (5) program
issues; and (6) bond forfeiture site reclamation progress
(Administrative Record No. MO-664.44).
By letter dated May 27, 2005, the Governor of Missouri petitioned
us to consider returning to Missouri the authority to implement and
enforce those parts of the Missouri program for which we substituted
Federal enforcement (Administrative Record No. MO-664.42).
On June 28, 2005, the Director of MDNR submitted information on the
funding and staffing plans that MLRP would use to assume full
enforcement authority for the Missouri program as required by 30 CFR
925.18(c). The Director of MDNR also provided the Missouri Attorney
General's written opinion on the legality of the funding proposal
(Administrative Record No. MO-664.48).
Also on June 28, 2005, we awarded a cooperative agreement to MDNR
for a period of six months to facilitate startup activities for MLRP,
to hire and train staff, and to take other actions necessary to resume
full regulatory program authority. This cooperative agreement was
effective July 1, 2005. On September 15, 2005, MDNR received an
amendment to its Title V cooperative agreement, which extended the
cooperative agreement through June 30, 2006, or such time that we
approve or disapprove Missouri's petition to assume full enforcement
authority. We also awarded Missouri an FY 2005 AML Simplified Grant on
June 28, 2005. The FY 2005 AML grant was initially funded for the
period July 1, 2005, to June 30, 2006, to facilitate startup
operations. No non-emergency project construction funds were included
(Administrative Record No. MO-664.53A).
OSM and the State met face to face on nearly a monthly basis and
held numerous conference calls between meetings to discuss actions
required under the cooperative agreement. To date, Missouri inspectors
are accompanying OSM on all inspections. Missouri staff is working with
OSM on permitting requests, and the State and OSM are working on a plan
to complete reclamation of the forfeiture sites. Missouri has made
leadership and organizational changes as part of its implementation of
the cooperative agreement (Administrative Record No. MO-664.63), and
has met with coal mining operators to discuss these changes.
II. OSM's Findings on Missouri's Responses to Required Remedial Actions
A. In order for MLRP to demonstrate its intent and capability to
fully implement and enforce the Missouri program as approved by the
Secretary, we required MLRP to complete certain remedial actions, which
we codified at 30 CFR 925.18(a) through (e). The Federal regulation at
30 CFR 925.19 provides that we will consider returning to Missouri the
authority suspended under 30 CFR 925.17 provided that the State has
accomplished all remedial actions specified under 30 CFR 925.18; and
petitions us in writing to consider returning authority to the State.
On May 27, 2005, we received a written petition from the Governor of
Missouri requesting that we return, to the State, the enforcement
authority that was suspended under 30 CFR 925.17 (Administrative Record
No. MO-664.42). We reviewed the current status of Missouri's responses
to the required remedial actions at 30 CFR 925.18, and we are making
the following findings:
B. 30 CFR 925.18 State Remedial Actions. 1. 30 CFR 925.18(a)--We
required MLRP to submit to us, by August 22, 2003, a list of all
outstanding enforcement actions specifying the abatement date set for
each cited violation. On July 22, 2003, the Missouri Attorney General's
office provided us with a copy of all outstanding enforcement actions
(Administrative Record No. MO-664.13). The notices of violation and
cessation orders specified the abatement date set for each cited
violation. On April 15, 2004, we found that MLRP had satisfied this
required remedial action, and we removed paragraph (a) from 30 CFR
925.18. See 69 FR 19932, dated April 15, 2004.
2. 30 CFR 925.18(b)--In accordance with the requirements of the
approved Missouri program, MLRP was to complete administrative
disposition of all enforcement actions that were initiated before
August 22, 2003. As applicable, MLRP was to conduct penalty
assessments, hold informal conferences and hearings, collect penalties,
and terminate or vacate enforcement actions. On November 25, 2003, MLRP
notified us that it had completed administrative disposition of five
enforcement actions that were initiated before August 22, 2003
(Administrative Record No. MO-664.17). Additionally, on February 18,
2004, MLRP notified us that it had completed administrative disposition
of the balance of its enforcement actions (Administrative Record No.
MO-664.18A). Based on the above
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discussion, we find that MLRP has satisfied this required remedial
action, and we are removing 30 CFR 925.18(b).
3. 30 CFR 925.18(c)--Within 30 days of the date on which OSM has
received and acknowledged an accurate description of available funding
for the regulatory program, MLRP must submit to OSM a plan to reassume
full authority for the Missouri program. At a minimum, the proposal
must provide specific and adequate provisions that address funding,
staffing, and adherence to the approved program. On June 28, 2005, the
Director of MDNR submitted information on the funding and staffing
plans that MLRP would use to assume full enforcement authority for the
Missouri program as required by 30 CFR 925.18(c). The Director of MDNR
also provided the Missouri Attorney General's written opinion on the
legality of the funding proposal (Administrative Record No. MO-664.48).
Based on the above discussion and upon our knowledge of the level of
staffing and the various expertise necessary to fully implement a
successful program, we find that MLRP has satisfied this required
remedial action. Therefore, we are removing 30 CFR 925.18(c).
4. 30 CFR 925.18(d)--Starting on April 1, 2004, MLRP was to submit
to us a report once a month on its progress in obtaining full funding
for the Missouri program. MLRP is submitting monthly update reports on
its progress in obtaining the funding and staffing needed to reassume
its program (Administrative Record Nos. MO-644.22, MO-664.23, MO-
664.26--MO.664.34, MO-664.36--MO-664.45, MO-664.50, and MO-664.54).
Based on these monthly submittals, we find that MLRP has satisfied this
required remedial action, and we are removing 30 CFR 925.18(d).
5. 30 CFR 925.18(e)--Effective September 8, 2003, MLRP was to take
all steps necessary to ensure that all records, documents,
correspondence, inspector logs, etc. were made secure and to supply
copies of all documents to us upon request. Beginning in July 2003,
MLRP provided access to all materials that we requested (Administrative
Record No. MO-664.13). MLRP also provided us with copies of all items,
such as permit review documents and bond release applications, that
were pending when it lost funding for the State program. On April 15,
2004, we found that MLRP had satisfied this required remedial action,
and we removed paragraph (e) from 30 CFR 925.18. See 69 FR 19932, dated
April 15, 2004.
III. Summary and Disposition of Comments
Public Comments
On August 22, 2005 (70 FR 48925), we announced receipt of the
Governor of Missouri's petition to consider returning to Missouri the
authority to enforce those parts of the Missouri program for which we
substituted Federal enforcement. In that document, we opened the public
comment period and provided for a public hearing. We also published
notice of the public hearing in three newspapers located within the
areas of active mining operations and one newspaper located in the city
of the Missouri regulatory authority. We held the public hearing on
September 22, 2005. The public comment period ended on September 29,
2005. The public comment period and hearing provided interested persons
an opportunity to comment on matters relevant to whether OSM should
grant the Governor of Missouri's petition to reassume authority for
those parts of the Missouri regulatory program currently being enforced
by OSM. Three persons representing two State agencies attended the
public hearing and two of them registered to speak at the hearing. We
received written comments from two State agencies and the Interstate
Mining Compact Commission (IMCC).
1. Public Hearing Oral Comments
The first person to speak at the public hearing represented the
Missouri Department of Natural Resources, Division of Environmental
Quality (MDEQ) and commented that MDEQ supported OSM's action to return
full enforcement authority for the Missouri program back to MLRP (MO-
664.60).
The second person to speak at the public hearing represented MLRP
and supported OSM's action to return full enforcement authority for the
Missouri program (MO-664.60). The speaker commented on the following:
(1) The loss of funding and staffing in 2003 that prevented
Missouri from operating the approved State program. Missouri and OSM
entered into a cooperative agreement to fund startup of the State
program in July 2005, so that Missouri could work toward assuming full
responsibility for the State program. [See Section I, Background on the
Missouri Program, for more information on the July 2005 cooperative
agreement (Administrative Record No. MO-664.53A)];
(2) Missouri's realization that changes in its operation are
appropriate. The new program will have a much smaller and different
staff. It will be one set of staff that will work on coal, bond
forfeiture, and abandoned mine land reclamation activities;
(3) The intent to change the Missouri regulations to phase out the
regulatory process known as the bond pool and to convert to full cost
bonding;
(4) The need to reclaim abandoned mine lands for future
generations; and
(5) Missouri looking forward to once again implementing the full
regulatory and reclamation programs.
2. Written Comments
By letters dated September 15, 2005, the Executive Director of IMCC
and the Chairman of MLRC, commented that they strongly endorse and
support the petition submitted by Governor Blunt to allow Missouri to
reassume authority for those parts of the Missouri regulatory program
that have recently been enforced by OSM. The IMCC and MLRC believe that
Missouri has demonstrated its intent and capability to reassume full
authority to implement and enforce its regulatory program
(Administrative Record Nos. MO-664.56 and MO-664.57).
By letter dated September 19, 2005, the Director of MDEQ also
commented that the MDEQ strongly endorses and supports the petition
submitted by Governor Blunt to allow Missouri to reassume authority for
those parts of the Missouri regulatory program that have recently been
enforced by OSM. The MDEQ also believes that Missouri has demonstrated
its intent and capability to reassume full authority to implement and
enforce its regulatory program (Administrative Record No. MO-664.58).
3. Response to All Commenters
We agree that OSM should approve Governor Blunt's petition to allow
Missouri to reassume authority for the State program. See Section IV,
OSM's Decision.
IV. OSM's Decision
After a review of all available information on Missouri's actions
to seek return of the Missouri program, we found that Missouri has
demonstrated that it has the resources, capability, policy, procedures,
and commitment necessary to assure proper implementation of the
program. Therefore, we are approving the Governor of Missouri's
petition to return full regulatory authority to MLRP for implementation
and enforcement of the Missouri program, and we are terminating Federal
enforcement of the Missouri program. This finding and decision are
based on the following:
1. The Governor of Missouri submitted a petition to consider
[[Page 5551]]
returning authority to the State and signed legislation that
appropriated the necessary funds for MLRP to implement and enforce the
Missouri program.
2. MLRP provided a satisfactory source of funding for
implementation and enforcement of the Missouri program.
3. MLRP provided us a staffing plan and has made good progress in
hiring and training staff to implement and enforce the Missouri
program.
4. Our staff has worked with the Missouri staff and management
during the period beginning on July 1, 2005, and our observations and
review of assignments made to Missouri indicate both staff and
management are ready to assume full enforcement responsibilities.
5. MLRP accomplished to our satisfaction all required remedial
actions at 30 CFR 925.18.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 925, which codify decisions concerning the Missouri
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective February 1, 2006. Section 503(a)(3) of
SMCRA requires that a State's program demonstrate that the State
regulatory authority has sufficient administrative and technical
personnel and sufficient funding to enable the State to regulate
surface coal mining and reclamation operations in accordance with the
requirements of SMCRA. Missouri is now in compliance with the
requirements of section 503(a)(3).
V. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based upon the nature of the action being taken.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted 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. 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 State regulatory programs must be based
solely on a determination of whether the program 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.
This determination is based on the fact that there are no Federally-
recognized Indian tribes in the State of Missouri and that the Missouri
program does not regulate coal exploration and surface coal mining and
reclamation operations on Indian lands. Therefore, the Missouri program
has no effect on Federally-recognized Indian tribes.
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 State regulatory programs 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 the return of
regulatory authority to the State of Missouri for those portions of the
Missouri permanent regulatory program for which we are currently
substituting Federal enforcement 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 rule is not expected to
result in additional costs to the regulated industry.
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 rule is
not expected to result in additional costs to the regulated industry.
Unfunded Mandates
The return of regulatory authority to the State of Missouri for
those portions of the Missouri permanent regulatory program for which
we are currently substituting Federal enforcement 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 nature of the action being taken.
[[Page 5552]]
List of Subjects in 30 CFR Part 925
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 6, 2006.
R.M. ``Johnnie'' Burton,
Acting Assistant Secretary, Land and Minerals Management.
0
For the reasons set out in the preamble, 30 CFR part 925 is amended as
set forth below:
PART 925--MISSOURI
0
1. The authority citation for part 925 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Part 925 is amended by removing Sec. Sec. 925.17, 925.18, and
925.19 in their entirety.
[FR Doc. 06-883 Filed 1-31-06; 8:45 am]
BILLING CODE 4310-05-P