[Federal Register Volume 72, Number 201 (Thursday, October 18, 2007)]
[Rules and Regulations]
[Pages 59009-59012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-20559]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 946
[VA-125-FOR]
Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We are approving an amendment to the Virginia regulatory
program under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act). The program amendment revises the Virginia Coal
Surface Mining Reclamation Regulations concerning review of a decision
not to inspect or enforce. The amendment is intended to specify the
time limit for filing a request for review of a decision and to
identify with whom a request for review should be filed.
DATES: Effective Date: October 18, 2007.
FOR FURTHER INFORMATION CONTACT: Mr. Earl Bandy, Director, Knoxville
Field Office; Telephone: (276) 523-4303. Internet: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Virginia 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 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 Virginia program on December 15, 1981. You
can find background information on the Virginia program, including the
Secretary's findings, the disposition of comments, and conditions of
approval of the Virginia program in the December 15, 1981, Federal
Register (46 FR 61088). You can also find later actions concerning
Virginia's program and program amendments at 30 CFR 946.12, 946.13, and
946.15.
[[Page 59010]]
II. Submission of the Amendment
By letter dated March 12, 2007 (Administrative Record Number VA-
1063), the Virginia Department of Mines, Minerals and Energy (DMME)
submitted an amendment to the Virginia program. In its letter, the DMME
stated that the program amendment revises the Virginia Coal Surface
Mining Reclamation Regulations to be consistent with the time limits to
request formal administrative review of agency decisions under the
Virginia Act and regulations. The amendment also identifies the person
with whom the request for review should be filed.
We announced receipt of the proposed amendment in the May 9, 2007,
Federal Register (72 FR 26329). In the same document, we opened the
public comment period and provided an opportunity for a public hearing
or meeting on the amendment's adequacy. We did not hold a public
hearing or meeting because no one requested one. The public comment
period ended on June 8, 2007.
III. OSM's Findings
4 VAC 25-130-842.15(d). Review of Decision Not To Inspect or Enforce
This provision is amended at subsection (d) by adding the phrase
``within 30 days of the Division's determination'' to clarify the time
limit within which a person may request a formal hearing to review a
decision not to inspect or enforce. Subsection (d) is also amended to
specify that all requests for hearings and appeals for review and
reconsideration be filed with the Director, Division of Mined Land
Reclamation.
As amended, 4 VAC 25-130-842.15(d) provides as follows:
Any person who requested a review of a decision not to inspect
or enforce under this section and who is or may be adversely
affected by any determination made under Subsection (b) of this
section may request review of that determination by filing within 30
days of the Division's determination an application for formal
review and request for hearing under the Virginia Administrative
Process Act, Sec. 2.2-4000 et seq. of the Code of Virginia. All
requests for hearing or appeals for review and reconsideration made
under this section shall be filed with the Director, Division of
Mined Land Reclamation, Department of Mines, Minerals and Energy,
Post Office Drawer 900, Big Stone Gap, Virginia 24219.
In its submittal letter, the DMME stated that the 30-day time limit for
requesting formal review was proposed in order to make this regulation
consistent with the time limits to request formal administrative review
of agency decisions under the Virginia Act and regulations.
The Federal regulations at 30 CFR 840.15 require that each State
program ``provide for public participation in enforcement of the State
program consistent with that provided by 30 CFR parts 842, 843 and 845
and 43 CFR part 4.''
The counterpart Federal regulation pertaining to appeals of
informal review decisions is at 30 CFR 842.15(d), which provides as
follows:
Any determination made under paragraph (b) of this section
[pertaining to requests for informal review] shall constitute a
decision of OSM within the meaning of 43 CFR 4.1281 and shall
contain a right of appeal to the Office of Hearings and Appeals in
accordance with 43 CFR part 4.
The Federal regulations promulgated by the Office of Hearings and
Appeals, and applicable to formal appeals of OSM's decisions on
informal review, are at 43 CFR 4.1280-4.1286. The time allowed for
requesting formal review is set forth in 43 CFR 4.1282(b), which states
that:
The notice of appeal shall be filed within 20 days from the date
of receipt of the decision. If the person appealing has not been
served with a copy of the decision, such appeal must be filed within
30 days of the date of the decision.
(Emphasis added.)
With respect to anyone requesting formal review, but who was not
served with the informal review decision, the Federal regulation and
the proposed Virginia amendment are identical in providing a 30-day
appeal period that runs from the date of the determination. However,
the Federal and State provisions differ with respect to appeal times
for persons who are served with the informal review decision. While the
State amendment provides a 30-day appeal period commencing with the
date of the informal review determination, the Federal regulation
allows only a 20-day appeal period, but that period commences with the
person's receipt of the decision. Even though Virginia would allow ten
additional days to appeal, we were concerned that a person's appeal
period could nearly expire before he or she receives the decision,
which must only be sent to the appellant within 30 days of the informal
review request, 4 VAC 25-130-842.15(b). To address that concern, the
DMME submitted a document from its Procedures Manual. The document,
entitled ``Mailing-Administrative Decisions'', was issued on September
10, 2007, and states, in pertinent part, as follows:
A decision that is subject to administrative or judicial review
under the Virginia Coal Surface Mining Control and Reclamation Act
of 1979, as amended, or the Virginia Administrative Process Act
shall be either hand delivered or sent by certified mail to the
person it is directed to or to his designated agent.
A decision sent by certified mail shall be mailed on the date of
the decision, but no later than 2 working days from the decision
date.
If the DMME adheres to the policy quoted above, a person wishing to
formally appeal an informal review decision should have at least 25
days to file his appeal after receipt of the decision, assuming the
decision is mailed two days after its issuance, and assuming delivery
occurs no later than 3 days after mailing. With the understanding that
the DMME will apply this policy to informal review decisions, and that
the DMME will serve all informal review decisions via certified mail,
we find that the amendment to 4 VAC 25-130-842.15(d) is no less
effective than the Federal regulations at 30 CFR 842.15(d) and 43 CFR
4.1282(b). The remainder of the amendment, pertaining to the
identification of the entity with whom a request for review should be
filed, is no less effective than the aforementioned Federal
regulations. The amendment is, therefore, approved.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record Number VA-1068) and no comments were received.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on March
16, 2007, we requested comments on the amendments from various Federal
agencies with an actual or potential interest in the Virginia program
(Administrative Record Number VA-1060). The United States Department of
the Interior, Bureau of Land Management responded and stated that they
found no inconsistencies with the proposed changes and the Federal
Laws, which govern mining (Administrative Record No. 1067). The United
States Department of Agriculture, Natural Resources Conservation
Service responded and stated that they did not object to the amendment
and deemed the changes appropriate.
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
[[Page 59011]]
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
Virginia proposed to make in this amendment pertain to air or water
quality standards. Therefore, we did not ask EPA to concur on the
amendment.
Under 30 CFR 732.17(h)(II)(i), we requested comments on the
amendment from the EPA (Administrative Record number VA-1064). No
comments were received.
V. OSM's Decision
Based on the above findings, we are approving the amendment sent to
us by Virginia on March 12, 2007. To implement this decision, we are
amending the Federal regulations at 30 CFR part 946, which codify
decisions concerning the Virginia 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 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 regulation
effective immediately will expedite that process. SMCRA requires
consistency of State and Federal standards.
VI. Procedural Determinations
Executive Order 12630--Takings
The provisions in the rule based on counterpart Federal regulations
do not have takings implications. This determination is based on the
analysis performed for the counterpart Federal regulations. The
revisions made at the initiative of the State that do not have Federal
counterparts have also been reviewed and a determination made that they
do not have takings implications. This determination is based on the
fact that the provisions are administrative and procedural in nature
and are not expected to have a substantive effect on the regulated
industry.
Executive Order 12866--Regulatory Planning and Review
This rule is exempt 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 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 Federal regulations 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 a portion of the
provisions in 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.) because they are 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. The Department of the Interior
also certifies that the provisions in this rule that are not based upon
counterpart Federal regulations 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.). This determination is based on
the fact that the provisions are administrative and procedural in
nature and are not expected to have a substantive effect on 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,
[[Page 59012]]
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 a portion
of the State provisions are 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. For the portion of
the State provisions that is not based upon counterpart Federal
regulations, this determination is based upon the fact that the State
provisions are administrative and procedural in nature and are not
expected to have a substantive effect on the regulated industry.
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 a portion of
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. For the portion of the State provisions that is not
based upon counterpart Federal regulations, this determination is based
upon the fact that the State provisions are administrative and
procedural in nature and are not expected to have a substantive effect
on the regulated industry.
List of Subjects in 30 CFR Part 946
Intergovernmental relations, Surface mining, Underground mining.
Dated: September 27, 2007.
H. Vann Weaver,
Acting Regional Director, Appalachian Region.
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For the reasons set out in the preamble, 30 CFR part 946 is amended as
set forth below:
PART 946--VIRGINIA
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1. The authority citation for part 946 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
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2. Section 946.15 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 946.15 Approval of Virginia regulatory program amendments.
* * * * *
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Original amendment submission date Date of final publication Citation/description
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* * * * * * *
March 12, 2007.......................... October 18, 2007..................... 4 VAC 25-130-842.15(d), Review
of decision not to inspect or
enforce.
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[FR Doc. E7-20559 Filed 10-17-07; 8:45 am]
BILLING CODE 4310-05-P