[Federal Register Volume 72, Number 47 (Monday, March 12, 2007)]
[Rules and Regulations]
[Pages 10928-10934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4416]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 925
[Docket No. MO-039-FOR]
Missouri 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 Missouri regulatory program
(Missouri program) regarding bonding under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA or the Act). Previously, we approved
an emergency rule that allowed Missouri to transition from a ``bond
pool'' approach to bonding to a ``full cost bond'' approach in a timely
manner. We are now approving Missouri's permanent rule concerning this
same topic. Missouri proposed to revise its program to improve
operational efficiency.
DATES: Effective Date: March 12, 2007.
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. 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 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, and 925.16.
II. Submission of the Amendment
By letter dated October 11, 2006 (Administrative Record No. MO-
666), Missouri sent us a ``permanent rule'' amendment to its program
regarding bonding under SMCRA (30 U.S.C. 1201 et seq.). This amendment
was sent as a replacement for Missouri's ``emergency rule'' that we
previously approved on June 8, 2006 (71 FR 33243). The ``emergency
rule'' allowed Missouri to transition from a ``bond pool'' approach to
bonding to a ``full cost bond'' approach in a timely manner. The
``permanent rule'' amendment, when approved, will become a permanent
part of Missouri's program.
We announced receipt of Missouri's proposed ``emergency rule''
amendment in the November 29, 2005, Federal Register (70 FR 71425). 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. We did not hold a public hearing or meeting because no one
requested one and we did not receive any comments. We also stated in
this Federal Register document that if Missouri submitted a ``permanent
rule'' with language that has the same meaning as the ``emergency
rule,'' we would publish a final rule and Missouri's ``permanent rule''
would become part of the Missouri program. Because Missouri's
``permanent rule'' has the same meaning as the ``emergency rule,'' we
are proceeding with the final rule.
III. OSM's Findings
Following are the findings we made concerning Missouri's
``permanent rule'' amendment under SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17. We are approving the amendment as described
below. Any revisions that we do not specifically discuss below concern
nonsubstantive wording or editorial changes.
A. Minor Revisions to Missouri's Regulations
Missouri's definition for ``regulatory authority,'' found at 10 CSR
[Code of State Regulations] 40-8.010(82), means the Land Reclamation
Commission (commission), the director, or their designated
representatives and employees unless otherwise specified in the State's
rules. Missouri proposed to replace the words ``commission'' or
``regulatory authority'' with the word ``director'' in the following
regulations: 10 CSR 40-7.011(2)(A), (3)(C), (4)(B), (6)(B)1., 5., 6.,
and 7., (6)(C)1. and 8., (6)(D)2., and (6)(D)2.B, 3.B, 3.B(I) and 5.C;
and 10 CSR 40-7.041(1)(A), (B)1. and (B)2. Missouri proposed to improve
operational efficiency by specifying that the director is to perform
certain duties. We find that the substitution of the word ``director''
for the words ``commission'' or ``regulatory authority'' will not
render Missouri's regulations less effective than the Federal
regulations because in accordance with Missouri's definition for
regulatory authority, the director is a regulatory authority as is the
commission and the certain duties specified in the regulations cited
above are not duties reserved solely for the commission according to
section 444.810 of Missouri's surface coal mining law.
[[Page 10929]]
Therefore, we are approving these revisions.
B. Revisions to Missouri's Regulations That Have the Same Meaning as
the Corresponding Provisions of the Federal Regulations
The State regulations listed in the table below contain language
that is the same as or similar to the corresponding sections of the
Federal regulations.
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Federal
Missouri counterpart
Topic regulation (10 regulation (30
CSR) CFR)
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Requirement to File a Bond...... 40-7.011(2)(B).... 800.11(d).
Bond Amounts.................... 40-7.011(4)....... 800.14(a) and (b).
Changing Bond Amounts........... 40-7.011(5)....... 800.15.
Personal Bonds Secured by 40-7.011(6)(C)2... 800.21(b)(2).
Letters of Credit.
Definition for ``Parent 40-7.011(6)(D)1.F. 800.23(a).
Corporation''.
Self-Bonding.................... 40-7.011(6)(D)2., 800.23(b), (b)(2),
(6)(D)2.B., (b)(4)(i) through
(6)(D)2.D.(I) (iii), (c), and
through (III), (f).
and (6)(D)3., and
(6)(D)6..
Criteria and schedule for 40-7.021(2)(B)5. 800.40(c).
release of reclamation and 6..
liability.
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Because the above State regulations have the same meaning as the
corresponding Federal regulations, we find that they are no less
effective than the Federal regulations.
C. 10 CSR 40-7.011 Bond Requirements
1. 10 CSR 40-7.011(1) Definitions
a. Missouri proposed to revise its definition for personal bond in
paragraph (1)(C) to read as follows:
Personal bond means an indemnity agreement in a sum certain
executed by the permittee as principal which is supported by
negotiable certificates of deposit or irrevocable letters of credit
which may be drawn upon by the director if reclamation is not
completed or if the permit is revoked prior to completion of
reclamation.
The Federal definition for collateral bond found at 30 CFR 800.15(b)
means an indemnity agreement in a sum certain executed by the permittee
as principal which is supported by one or more of the following: A cash
account; negotiable bonds of the United States, a State, or
municipality; negotiable certificates of deposit; irrevocable letters
of credit; a perfected, first-lien security interest in real property;
or other investment-grade rated securities having a rating of AAA, AA,
or A or an equivalent rating issued by a nationally recognized
securities rating service. The Federal regulation at 30 CFR 800.50
provides for the regulatory authority to forfeit bonds and use funds
collected from bond forfeiture to complete the reclamation plan or
portion thereof, on the permit area or increment to which bond coverage
applies.
Missouri has chosen to limit the vehicles that support an indemnity
agreement to negotiable certificates of deposit and irrevocable letters
of credit. Missouri also provides that the director may use funds from
personal bonds if reclamation is not completed or if the permit is
revoked before the completion of reclamation. We are, therefore,
approving Missouri's definition for personal bond because it is no less
effective than the above Federal regulations.
b. Missouri proposed to revise its definition for Phase I bond in
paragraph (1)(D) to read as follows:
Phase I bond means performance bond conditioned on the release
of sixty percent (60%) of the bond upon the successful completion of
Phase I reclamation of a permit area in accordance with the approved
reclamation plan.
There is no Federal definition for Phase I bond, however, the Federal
regulation at 30 CFR 800.40(c) states that the regulatory authority may
release all or part of the bond for the entire permit area or
incremental area if the regulatory authority is satisfied that all the
reclamation or a phase of the reclamation covered by the bond or
portion thereof has been accomplished in accordance with specific
schedules for reclamation of Phases I, II, and III. The schedule for
Phase I reclamation, found at 30 CFR 800.40(c)(1), involves the
operator completing the backfilling, re-grading (which may include the
replacement of topsoil), and drainage control of a bonded area in
accordance with the approved reclamation plan. When this schedule is
complete, the regulatory authority may release 60 percent of the bond.
We are approving Missouri's definition for Phase I bond because it is
no less effective than the Federal regulation at 30 CFR 800.40(c)(1).
2. 10 CSR 40-7.011(6) Types of Bonds
a. 10 CSR 40-7.011(6)(A) Surety Bonds
Missouri proposed to revise paragraph (6)(A)8. regarding surety
bonds. This paragraph inappropriately refers to a ``bank'' or ``bank
charter'' when the subject matter of this paragraph pertains to a
surety company. Missouri proposed to delete the language that refers to
a ``bank'' or ``bank charter.'' Also, Missouri proposed to correct the
incorrect reference citation, 10 CSR 40-7.031(A)(6), so that it
correctly reads 10 CSR 40-7.031(1)(F)2. We are approving Missouri's
revisions regarding the deletion of the terms ``bank'' and ``bank
charter'' because they are inappropriately included in this paragraph
that pertains only to surety companies. We are also approving the
correction of the incorrect reference citation.
Finally, Missouri proposed that, upon the incapacity of the surety
because of bankruptcy or insolvency, or suspension or revocation of its
license, the permittee must promptly notify the director. Upon this
notification, the director must issue a notice of violation (NOV)
against the operator who is without bond coverage specifying that the
operator must replace the bond in no more than 90 days. If the NOV is
not abated in accordance with the schedule, a cessation order must be
issued requiring immediate compliance with 10 CSR 40-3.150(4),
Cessation of Operations--Permanent.
The Federal regulation at 30 CFR 800.16(e)(2) sets forth a
requirement that upon the incapacity of a bank or surety company by
reason of bankruptcy or insolvency, or suspension or revocation of a
charter or license, the permittee must be deemed to be without bond
coverage and must promptly notify the regulatory authority. When the
regulatory authority receives the notification, it must notify the
operator in writing to replace the bond in a period not to exceed 90
days. If the operator does not provide an adequate bond, the operator
must cease mining and immediately begin reclamation operations in
accordance with the approved reclamation plan.
[[Page 10930]]
We are approving the above revision because it is no less effective
than the Federal regulation at 30 CFR 800.16(e)(2).
b. 10 CSR 40-7.011(6)(B) Personal Bonds Secured by Certificates of
Deposit
i. Missouri proposed to revise paragraphs (6)(B)2., 4., 6., and 7.
regarding personal bonds secured by certificates of deposit. Paragraph
(6)(B)4. refers to banks or savings and loan companies issuing the
certificates of deposit, while paragraphs (6)(B)2., 6., and 7. only
refer to banks issuing certificates of deposit. Missouri proposed to
revise these paragraphs to make them consistent with paragraph (6)(B)4.
Missouri also proposed to remove the term ``Federal Savings and Loan
Insurance Corporation (FSLIC)'' from this paragraph because the FSLIC
was abolished and the Federal Deposit Insurance Corporation (FDIC) now
insures savings and loan companies. We are approving these revisions
because the Federal regulation at 30 CFR 800.21(a)(4) implies that
banks or savings and loan companies are acceptable sources for
certificates of deposit by its reference to certificates of deposits
insured by the FDIC or the FSLIC.
ii. Missouri proposed to revise paragraph (6)(B)4. by adding that
permittees may not submit, from a single bank or savings and loan
company, certificates of deposit totaling more than the maximum
insurable amount as determined by the FDIC. We are approving this
revision because the Federal regulation at 30 CFR 800.21(a)(4) contains
the provision that an individual certificate of deposit cannot be
accepted in an amount that is greater than the maximum insurable amount
as determined by the FDIC.
iii. Missouri proposed to revise paragraph (6)(B)7. by changing the
number of days that an operator has for replacing bond coverage from 60
to 90 days if the operator is without bond because of a bank's or
savings and loan company's insolvency or bankruptcy or suspension or
revocation of its charter or license. Missouri also proposed to add a
requirement to paragraph (6)(B)7. that prohibits an operator from
resuming mining operations until after the director has determined that
an acceptable bond has been posted. We are approving the revision
because the Federal regulation at 30 CFR 800.16(e) provides that the
operator must replace the bond in a period not to exceed 90 days and
that the operator must not resume mining operations until the
regulatory authority has determined that an acceptable bond has been
posted.
c. 10 CSR 40-7.011(6)(C) Personal Bonds Secured by Letters of Credit
i. Missouri proposed to revise paragraph (6)(C)4. as follows:
The letter of credit shall be issued by a bank authorized to do
business in the United States. If the issuing bank is located in
another state, a bank located in Missouri must confirm the letter of
credit. Confirmations shall be irrevocable and on a form provided by
the director;
The Federal regulation at 30 CFR 800.21(b)(1) requires letters of
credit to be issued by a bank organized or authorized to do business in
the United States. Therefore, we are approving Missouri's proposed
revision because it is no less effective than the Federal regulation.
ii. Missouri proposed to revise paragraph (6)(C)9. to require the
bond to have a mechanism by which a bank must give prompt notice to the
director and the permittee of any action filed alleging the insolvency
or bankruptcy of the bank or permittee or alleging any violations which
would result in the suspension or revocation of the bank's charter or
license to do business. Missouri also proposed that upon the incapacity
of any bank by reason of insolvency or bankruptcy or suspension or
revocation of its charter or license, the permittee shall be deemed to
be without bond and the director must, upon notification of the
incapacity, issue an NOV to the operator who is without bond. The NOV
must specify a period not to exceed 90 days in which to replace the
bond coverage. In addition, if the NOV is not abated in accordance with
the abatement schedule, a cessation order must be issued requiring the
immediate compliance with 10 CSR 40-3.150(4) Cessation of Operations--
Permanent and the mining operations must not resume until the director
has determined that an acceptable bond has been posted.
The Federal regulation at 30 CFR 800.16(e)(1) requires the bond to
have a mechanism for a bank or surety company to promptly notify the
regulatory authority and the permittee of any action filed alleging the
insolvency or bankruptcy of the bank, surety company, or permittee or
alleging any violations which would result in the suspension or
revocation of the bank's or surety company's charter or license to do
business. The Federal regulation at 30 CFR 800.16(e)(2) deems the
permittee to be without bond coverage upon the incapacity of the bank
or surety company by reason of insolvency or bankruptcy or suspension
or revocation of its charter or license and requires the permittee to
promptly notify the regulatory authority of the incapacity. The
regulatory authority upon this notification must notify, in writing,
the operator who is without bond coverage, to replace bond coverage in
a period not to exceed 90 days. If an adequate bond is not posted, the
operator must (1) cease mining, (2) comply with 30 CFR 816.132 or 30
CFR 817.132, Cessation of Operations: Permanent, and (3) immediately
begin reclamation operations in accordance with the reclamation plan.
We are approving Missouri's revisions because they are no less
effective than the above Federal regulations.
d. 10 CSR 40-7.011(6)(D) Self-Bonding
i. Missouri proposed to revise paragraph (6)(D)8. by changing the
time period for replacing the bond from 60 days to 90 days if the
financial conditions of the permittee or third-party guarantors change
so that they no longer satisfy the requirements for being able to post
self bonds. Missouri also proposed that if the bond is not replaced in
accordance with the schedule set by the director, the operator must
immediately begin to conduct reclamation operations in accordance with
the reclamation plan.
The Federal regulation at 30 CFR 800.23(g) provides that if the
financial conditions of the applicant, parent, or non-parent corporate
guarantor change so that the criteria for being able to post self bonds
are not met, the permittee must immediately notify the regulatory
authority and must post an alternative form of bond within 90 days. If
the permittee does not post the alternate bond, the operator must cease
mining operations and immediately begin to conduct reclamation
operations in accordance with the reclamation plan.
We are approving Missouri's revision because it is no less
effective than the Federal regulation at 30 CFR 800.23(g).
3. 10 CSR 40-7.011(7) Replacement of Bonds
Missouri proposed to revise paragraph (7)(A). This paragraph allows
permittees to replace existing surety or personal bonds with other
surety or personal bonds. Missouri proposed to add self bonds so that
permittees may replace existing surety, personal or self bonds with
other surety, personal or self bonds.
The Federal regulation at 30 CFR 800.30(a) provides that the
regulatory authority may allow a permittee to replace existing bonds
with other bonds that provide adequate coverage.
[[Page 10931]]
We are approving Missouri's revision because it is no less
effective than the Federal regulation at 30 CFR 800.30(a).
D. 10 CSR 40-7.021(2) Criteria and Schedule for Release of Reclamation
Liability
1. Missouri proposed to revise paragraphs (2) and (2)(E) Paragraph
(2) reads as follows:
(2) Criteria and Schedule for Release of Reclamation Liability.
Except as described in subsection (2)(E), reclamation liability
shall be released in three (3) phases.
Missouri proposed to delete the phrase, ``Except as described in
subsection (2)(E),'' so that revised paragraph (2) reads as follows:
(2) Criteria and Schedule for Release of Reclamation Liability.
Reclamation liability shall be released in three (3) phases.
Paragraph (2)(E) reads as follows:
(E) All bonding liability may be released in full from
undisturbed areas when further disturbances from surface mining have
ceased. No bonding shall be released from undisturbed areas before
Phase I liability applying to adjacent disturbed lands is released,
except that the commission may approve a separate bond release from
an area of undisturbed land if the area is not excessively small and
can be separated from areas that have been or will be disturbed by a
distinct boundary, which can be easily located in the field and
which is not so irregular as to make record keeping unusually
difficult. The permit shall terminate on all areas where all bonds
have been released.
Missouri proposed to delete all the language in this paragraph except
the last sentence, so that revised paragraph (2)(E) reads as follows:
(E) The permit shall terminate on all areas where all bonds have
been released.
The Federal regulations that pertain to the requirement for releasing
Phase I, II, and III performance bonds are found at 30 CFR 800.40(c),
however, there are no direct Federal counterpart regulations to 10 CSR
40-7.021(2) and (2)(E). The language being removed from 10 CSR 40-
7.021(2) references 10 CSR 40-7.021(2)(E) and both of these paragraphs
pertain to the full release of bond, under certain conditions, from
undisturbed areas where further disturbance from surface mining have
ceased. The Federal regulation at 30 CFR 800.15(c) allows bond
adjustments which involve undisturbed land and states that these
adjustments are not considered bond release subject to the procedures
of 30 CFR 800.40. We are approving the removal of the language from 10
CSR 40-7.021(2) and (2)(E) because the removal of this language is not
inconsistent with and will not render Missouri's regulations less
effective than the Federal regulations.
2. Missouri proposed to revise paragraph (2)(A) regarding the
criteria for release of Phase I liability. Paragraph (2)(A) reads as
follows:
(A) An area shall qualify for release of Phase I liability upon
completion of backfilling and grading, topsoiling, drainage control
and initial seeding of the disturbed area. Phase I bond shall be
retained on unreclaimed temporary structures, such as roads,
siltation structures, diversions and stockpiles, on an acre for acre
basis.
Missouri proposed to delete the phrase, ``on an acre for acre basis,''
from the last sentence of this paragraph.
The Federal counterpart regulation is found at 30 CFR 800.40(c)(1)
and provides that Phase I reclamation is complete after the operator
completes the backfilling, regrading (which may include the replacement
of topsoil), and drainage control of the bonded area in accordance with
the approved reclamation plan. We are approving the deletion of the
above phrase from Missouri's regulation because it will not render the
State regulation less effective than the Federal counterpart
regulation.
3. Missouri proposed to revise paragraph (2)(B)4. regarding the
criteria for qualifying for release of Phase II liability to read as
follows:
4. A plan for achieving Phase III release has been approved for
the area requested for release and the plan has been incorporated
into the permit;
There is no direct Federal counterpart regulation for paragraph
(2)(B)4. However, the Federal regulation at 30 CFR 784.13(a) requires
each application to contain a plan for the reclamation of the lands
within the proposed permit area. Missouri's proposed regulation is no
less effective than the above Federal regulations and we are approving
it.
4. Missouri proposed to revise paragraph (2)(D) regarding bond
release by deleting the language and replacing it with new language,
and by adding new paragraphs 1. through 3. to read as follows:
(D) Bonds release.
1. Phase I--After the operator completes the backfilling,
grading, topsoiling, drainage control, and initial seeding of the
disturbed area in accordance with the approved reclamation plan, the
director shall release 60 percent of the bond for the applicable
area.
2. Phase II--After vegetation has been established on the
regraded mined lands in accordance with the approved reclamation
plan, the director shall release an additional amount of bond. When
determining the amount of bond to be released after successful
vegetation has been established, the director shall retain that
amount of bond for the vegetated area which would be sufficient to
cover the cost of reestablishing vegetation if completed by a third
party and for the period specified for in 10 CSR 40-7.021(1)(B) for
reestablishing vegetation.
3. Phase III--After the operator has completed successfully all
surface coal mining and reclamation activities, the director shall
release the remaining portion of the bond, but not before the
expiration period specified for the period of liability in 10 CSR
40-7.021(1)(B).
The Federal counterpart regulations are found at 30 CFR 800.40(c)(1)
through (c)(3) and set forth the criteria for releasing bond based upon
the three phases of reclamation. We are approving Missouri's proposed
revision because it is substantively the same as the Federal
counterpart regulations.
E. 10 CSR 40-7.031 Permit Revocation, Bond Forfeiture and Authorization
To Expend Reclamation Fund Monies
Missouri proposed to revise paragraph (2) regarding the procedures
for permit suspension or revocation and paragraph (4) regarding
declaration of permit revocation. More specifically, Missouri proposed
to revise paragraphs (2)(E)1. and (4), and to delete paragraphs
(2)(E)2.C and D in order to remove provisions related to the Missouri
Coal Mine Land Reclamation Fund. Missouri also proposed to add new
paragraphs (4)(A) through (B)2. to specify what monies the director may
use for reclamation purposes for bonds forfeited before January 1,
2006, and for those forfeited on or after January 1, 2006.
The Federal regulations at 30 CFR 800.11(a) through (d) set forth
the provisions for a permit applicant to file, with the regulatory
authority, a bond or bonds for performance that is conditioned upon the
faithful performance of all the requirements of the Act, the regulatory
program, the permit, and the reclamation plan. The regulations also
include a ``full cost bond'' bonding system. The Federal regulation at
30 CFR 800.11(e) provides that we may approve an alternative bonding
system as part of a State program. The previously approved Missouri
Coal Mine Land Reclamation Fund is a ``bond pool'' fund that is part of
Missouri's alternative bonding system and is used to complete
reclamation on permit sites for which the permits have been revoked and
the associated bonds have been forfeited. Missouri proposed to
terminate its alternative bonding system and to adopt a ``full cost
bond'' bonding system effective January 1, 2006. With this transition
to a ``full cost bond'' bonding system, Missouri proposed that only
permit sites whose bonds have been forfeited before January 1, 2006,
are eligible to have
[[Page 10932]]
monies expended from the ``bond pool'' fund for the purpose of
completing reclamation of the sites. Missouri also proposed that permit
sites whose bonds have been forfeited on or after January 1, 2006, are
eligible to have monies expended from the forfeited ``full cost bonds''
for the purpose of completing reclamation of the sites. We are
approving Missouri's revisions as they are no less effective than the
Federal regulations because permit sites under the alternative bonding
system and the ``full cost bond'' bonding system have funds available
for reclamation, if required.
Finally, Missouri proposed to add new paragraphs (4)(B)1. and 2. to
read as follows:
1. In the event the estimated amount forfeited is insufficient
to pay for the full cost of reclamation, the operator shall be
liable for remaining costs. The director may complete or authorize
completion of reclamation of the bonded area and may recover from
the operator all costs of reclamation in excess of the amount
forfeited.
2. In the event the amount of performance bond forfeited is more
than the amount necessary to complete reclamation, the unused funds
shall be returned by the director to the party from whom they were
collected.
The Federal counterpart regulations are found at 30 CFR 800.50(d)(1)
and (2). We are approving Missouri's revisions because they are
substantively identical to the Federal regulations.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the emergency rule amendment (70 FR
71425), but did not receive any.
Federal Agency Comments
On November 10, 2005, and December 13, 2005, under 30 CFR
732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on
the emergency rule amendment from various Federal agencies with an
actual or potential interest in the Missouri program (Administrative
Record Nos. MO-665.1 and MO-665.9). We did not receive any comments.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence from 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 Missouri proposed to
make in this amendment pertain to air or water quality standards.
Therefore, we did not ask EPA to concur on the emergency rule
amendment.
On November 10, 2005, and December 13, 2005, under 30 CFR
732.17(h)(11)(i), we requested comments on the emergency rule amendment
from EPA (Administrative Record Nos. MO-665.1 and MO-665.9). EPA did
not respond to our request.
State Historic 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 November 10, 2005, and December 13, 2005, we requested
comments on Missouri's emergency rule amendment (Administrative Record
No. MO-665.1 and MO-665.9), but neither responded to our request.
V. OSM's Decision
Based on the above findings, we approve the amendment Missouri sent
us on October 11, 2006.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 925, which codify decisions concerning the Missouri
program to include the original amendment submission date and the date
of final publication for this rulemaking.
VI. Procedural Determinations
Administrative Procedure Act
This final rule has been issued without prior public notice or
opportunity for public comment. The Administrative Procedure Act (APA)
(5 U.S.C. 553) provides an exception to the notice and comment
procedures when an agency finds there is good cause for dispensing with
such procedures on the basis that they are impracticable, unnecessary
or contrary to the public interest. We have determined that under 5
U.S.C. 553(b)(3)(B), good cause exists for dispensing with the notice
of proposed rulemaking and public comment procedures for this rule. The
provisions being approved in this rulemaking are substantively
identical to those approved in the emergency rulemaking on June 8,
2006. At that time, notice and an opportunity to comment were provided
to members of the public and no comments were received. Consequently,
an additional comment period on the same provisions is viewed as
unnecessary. In addition, 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 the 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.
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
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. 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.
[[Page 10933]]
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 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 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 regulations did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 925
Intergovernmental relations, Surface mining, Underground mining.
Dated: February 2, 2007.
Ervin J. Barchenger,
Acting Regional Director, Mid-Continent Region.
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. Section 925.15 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 925.15 Approval of Missouri regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
October 11, 2006.............. March 12, 2007... 10 CSR 40-7.011(1)(C)
and (D), (2)(A) and
(B), (3)(C), (4) and
(5), (6)(A)6., 8.
and 9., (6)(B)1.,
2., and 4. through
7., (6)(C)1. through
4., 8. and 9.,
(6)(D)1.F., 2.,
2.B., 2.D.(I)
through (III), 3.,
5.C., 6., 8., and
(7)(A); 10 CSR 40-
7.021(1)(A), (2),
(2)(A), (2)(B)3.
through 6.,
(2)(C)2., (2)(D) and
(E); 10 CSR 40-
7.031(2)(E)1. and
2., (2)(E)2.C. & D.,
(3)(C), and (4)
through (4)(B)2.;
and 10 CSR 40-7.041.
------------------------------------------------------------------------
[[Page 10934]]
[FR Doc. E7-4416 Filed 3-9-07; 8:45 am]
BILLING CODE 4310-05-P