Virginia Regulatory Program, 35199-35204 [05-11979]
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Federal Register / Vol. 70, No. 116 / Friday, June 17, 2005 / Proposed Rules
19. Section 416.1417 is amended by
revising paragraph (d) to read as
follows:
§ 416.1417 Disability hearing—disability
hearing officer’s reconsidered
determination.
*
*
*
*
*
(d) Effect. The disability hearing
officer’s reconsidered determination, or,
if it is changed under § 416.1418, the
reconsidered determination that is
issued by the Associate Commissioner
for Disability Determinations or his or
her delegate, is binding in accordance
with § 416.1421, subject to the
exceptions specified in that section.
20. Section 416.1418 is revised to read
as follows:
§ 416.1418 Disability hearing—review of
the disability hearing officer’s reconsidered
determination before it is issued.
(a) General. The Associate
Commissioner for Disability
Determinations or his or her delegate
may select a sample of disability hearing
officers’ reconsidered determinations,
before they are issued, and review any
such case to determine its correctness
on any grounds he or she deems
appropriate. The Associate
Commissioner or his or her delegate
shall review any case within the sample
if:
(1) There appears to be an abuse of
discretion by the hearing officer;
(2) There is an error of law; or
(3) The action, findings or
conclusions of the disability hearing
officer are not supported by substantial
evidence.
Note to paragraph (a): If the review
indicates that the reconsidered determination
prepared by the disability hearing officer is
correct, it will be dated and issued
immediately upon completion of the review.
If the reconsidered determination prepared
by the disability hearing officer is found by
the Associate Commissioner or his or her
delegate to be deficient, it will be changed as
described in paragraph (b) of this section.
(b) Methods of correcting deficiencies
in the disability hearing officer’s
reconsidered determination. If the
reconsidered determination prepared by
the disability hearing officer is found by
the Associate Commissioner for
Disability Determinations or his or her
delegate to be deficient, the Associate
Commissioner or his or her delegate will
take appropriate action to assure that
the deficiency is corrected before a
reconsidered determination is issued.
The action taken by the Associate
Commissioner or his or her delegate will
take one of two forms:
(1) The Associate Commissioner or
his or her delegate may return the case
file either to the component responsible
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for preparing the case for hearing or to
the disability hearing officer, for
appropriate further action; or
(2) The Associate Commissioner or
his or her delegate may issue a written
reconsidered determination which
corrects the deficiency.
(c) Further action on your case if it is
sent back by the Associate
Commissioner for Disability
Determinations or his or her delegate
either to the component that prepared
your case for hearing or to the disability
hearing officer. If the Associate
Commissioner for Disability
Determinations or his or her delegate
sends your case back either to the
component responsible for preparing
the case for hearing or to the disability
hearing officer for appropriate further
action, as provided in paragraph (b)(1)
of this section, any additional
proceedings in your case will be
governed by the disability hearing
procedures described in § 416.1416(f) or
if your case is returned to the disability
hearing officer and an unfavorable
determination is indicated, a
supplementary hearing may be
scheduled for you before a reconsidered
determination is reached in your case.
(d) Opportunity to comment before
the Associate Commissioner for
Disability Determinations or his or her
delegate issues a reconsidered
determination that is unfavorable to
you. If the Associate Commissioner for
Disability Determinations or his or her
delegate proposes to issue a
reconsidered determination as described
in paragraph (b)(2) of this section, and
that reconsidered determination is
unfavorable to you, he or she will send
you a copy of the proposed reconsidered
determination with an explanation of
the reasons for it, and will give you an
opportunity to submit written
comments before it is issued. At your
request, you will also be given an
opportunity to inspect the pertinent
materials in your case file, including the
reconsidered determination prepared by
the disability hearing officer, before
submitting your comments. You will be
given 10 days from the date you receive
the Associate Commissioner’s notice of
proposed action to submit your written
comments, unless additional time is
necessary to provide access to the
pertinent file materials or there is good
cause for providing more time, as
illustrated by the examples in
§ 416.1411(b). The Associate
Commissioner or his or her delegate will
consider your comments before taking
any further action on your case.
[FR Doc. 05–11886 Filed 6–16–05; 8:45 am]
BILLING CODE 4191–02–P
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 946
[VA–122–FOR]
Virginia Regulatory Program
Office of Surface Mining
Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment
period and opportunity for public
hearing on proposed amendment.
AGENCY:
SUMMARY: We are announcing receipt of
a proposed 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. The amendment reflects
changes in renumbering of the Virginia
Code section references of the Virginia
Administrative Process Act; clarifies the
filing of requests for formal hearing and
judicial review; revisions of the Virginia
rules to be consistent with amendments
to the Federal rules; revisions to allow
approval of natural stream restoration
channel design; regulation changes to
implement requirements of Virginia HB
2573 (enacted as emergency legislation);
and corrections of typographical errors.
DATES: We will accept written
comments on this amendment until 4
p.m. (local time), on July 18, 2005. If
requested, we will hold a public hearing
on the amendment on July 12, 2005. We
will accept requests to speak at the
hearing until 4 p.m. (local time), on July
5, 2005.
ADDRESSES: You may submit comments,
identified by VA–122–FOR, by any of
the following methods:
• E-mail: rpenn@osmre.gov. Include
VA–122–FOR in the subject line of the
message.
• Mail/Hand Delivery: Mr. Robert A.
Penn, Director, Big Stone Gap Field
Office, Office of Surface Mining
Reclamation and Enforcement, 1941
Neeley Road, Suite 201, Compartment
116, Big Stone Gap, Virginia 24219.
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Instructions: All submissions received
must include the agency docket number
for this rulemaking. For detailed
instructions on submitting comments
and additional information on the
rulemaking process, see the ‘‘Public
Comment Procedures’’ heading in the
SUPPLEMENTARY INFORMATION section of
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Federal Register / Vol. 70, No. 116 / Friday, June 17, 2005 / Proposed Rules
this document. You may also request to
speak at a public hearing by any of the
methods listed above or by contacting
the individual listed under FOR FURTHER
INFORMATION CONTACT.
Docket: You may review copies of the
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 Big Stone Gap Field
Office.
Mr. Robert A. Penn, Director, Big
Stone Gap Field Office, Office of Surface
Mining Reclamation and Enforcement,
1941 Neeley Road, Suite 201,
Compartment 116, Big Stone Gap,
Virginia 24219, Telephone: (540) 523–
4303. E-mail: rpenn@osmre.gov.
Mr. Leslie S. Vincent, Virginia
Division of Mined Land Reclamation,
P.O. Drawer 900, Big Stone Gap,
Virginia 24219, Telephone: (540) 523–
8100. E-mail: lsv@mme.state.va.us.
Mr.
Robert A. Penn, Director, Big Stone Gap
Field Office; Telephone: (540) 523–
4303. Internet: rpenn@osmre.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
I. Background on the Virginia Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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.
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II. Description of the Proposed
Amendment
By letter dated May 9, 2005
(Administrative Record Number VA–
1048), 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
Virginia Coal Surface Mining
Reclamation Regulations to reflect the
changes in the renumbering of the
Virginia Code section references of the
Virginia Administrative Process Act;
clarifies the filing of requests for formal
hearing and judicial review; revises the
Virginia rules to make them consistent
with amendments to the Federal rules;
revises its rules to allow approval of
natural stream restoration channel
design; changes its regulation to
implement requirements of Virginia HB
2573 (enacted as emergency legislation
in Chapter 3 of the 2005 Virginia Acts
of Assembly); and corrects
typographical errors. Specifically, the
following amendments are proposed:
1. 4 VAC 25–130–700.12 Petitions to
initiate rulemaking.
The proposed amendment revises
subsection (e) by changing the citation
of the Virginia Code section from ‘‘9–
6.14:1’’ to ‘‘2.2–4000A.’’
2. 4 VAC 25–130–773.21
Improvidently issued permits;
Rescission procedures.
The proposed amendment revises
subsection (c), right to appeal, by
changing the citation of Virginia Code
section from ‘‘9–6.14:1’’ to ‘‘2.2–
4000A.’’
3. 4 VAC 25–130–775.11
Administrative Review.
The proposed amendment revises
subsection (b)(1) by changing the
citation of the Virginia Code section
from ‘‘9–6.14:12’’ to ‘‘2.2–4020.’’ In
addition, new subsection (d) is added to
provide as follows:
(d) All requests for hearing or appeals for
review and reconsideration made under this
section shall be filed with the Director,
Department of Mines, Minerals and Energy,
Post Office Drawer 900, Big Stone Gap,
Virginia 24219.
4. 4 VAC 25–130–775.13 Judicial
Review.
New subsection (c) is added to
provide as follows:
(c) All notices of appeal for judicial review
of a Hearing Officer’s final decision, or the
final decision on review and reconsideration,
shall be filed with the Director, Department
of Mines, Minerals and Energy, Post Office
Drawer 900, Big Stone Gap, Virginia 24219.
5. 4 VAC 25–130–784.20
Control Plan.
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Subsidence
Subsection (a)(3) is amended by
deleting language concerning
presubsidence survey requirements. The
DMME stated that the provision was
amended to delete those requirements
that are counterpart to Federal
regulations that were suspended
effective December 22, 1999 (64 FR
71652). The following language is being
deleted: ‘‘condition of all
noncommercial buildings or occupied
residential dwellings and structures
related thereto, that may be materially
damaged or for which the reasonably
foreseeable use may be diminished by
subsidence, within the area
encompassed by the applicable angle of
draw; as well as a survey of the.’’ In
addition, the following language is
being deleted: ‘‘premining condition or
value of such noncommercial buildings
or occupied residential dwellings and
structures related thereto and the.’’ As
revised, Subsection (a)(3) provides as
follows:
(3) A survey of the quantity and quality of
all drinking, domestic and residential water
supplies within the permit area and adjacent
area that could be contaminated, diminished,
or interrupted by subsidence. If the applicant
cannot make this survey because the owner
will not allow access to the site, the applicant
will notify the owner in writing of the effect
that denial of access will have as described
in 4VAC25–130–817.121(c)(4). The applicant
must pay for any technical assessment or
engineering evaluation used to determine the
quantity and quality of drinking, domestic, or
residential water supplies. The applicant
must provide copies of the survey and any
technical assessment or engineering
evaluation to the property owner and the
division.
6. 4 VAC 25–130–800.51
Administrative review of performance
bond forfeiture.
Subsection (c)(1) is amended by
changing the citation of the Virginia
Code sections from ‘‘9–6.14:12’’ to ‘‘2.2–
4020.’’
Subsection (e) is amended by
clarifying that the ‘‘Division of Mined
Land Reclamation’’ is now the
‘‘Department of Mines, Minerals and
Energy.’’ As amended, Subsection (e)
provides as follows:
(e) All requests for hearing, or appeals for
review and reconsideration made under this
section; and all notices of appeal for judicial
review of a Hearing Officer’s final decision,
or the final decision on review and
reconsideration shall be filed with the
Director, Department of Mines, Minerals and
Energy, Post Office Drawer 900, Big Stone
Gap, Virginia 24219.
7. 4 VAC 25–130–816.11 Signs and
markers.
New Subsection (a)(4) is added and
existing (a)(4) is redesignated as (a)(5).
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As amended, Subsection (a) provides as
follows:
(a) Specifications. Signs and markers
required under this Part shall—
(1) Be posted, maintained, and removed by
the person who conducts the surface mining
activities;
(2) Be of a uniform design throughout the
operation that can be easily seen and read;
(3) Be made of durable material;
(4) For permit boundary markers on areas
that are located on steep slopes above private
dwellings or other occupied buildings, be
made of or marked with fluorescent or
reflective paint or material; and
(5) Conform to local ordinances and codes.
8. 4 VAC 25–130–816.43 Diversions.
New Subsection (d) is added, and
existing Subsection (d) is redesignated
as Subsection (e). New Subsection (d)
provides as follows:
(d) In lieu of the requirements of
paragraphs (a)(2) through (a)(9), (b)(2)
through (b)(6) and (c)(1) through (c)(3) of this
section, a natural stream restoration channel
design approved by the U.S. Army Corps of
Engineers as part of an approved U.S. Army
Corps of Engineers permit shall be deemed to
meet the requirements of this section.
9. 4 VAC 25–130–816.64 Use of
explosives; blasting schedule.
New Subsection (a)(4) concerning
seismic monitoring is added and
provides as follows:
(4) Seismic monitoring shall be conducted
when blasting operations on coal surface
mining operations are conducted within
1,000 feet of a private dwelling or other
occupied building.
10. 4 VAC 25–130–816.105
Backfilling and grading; thick
overburden.
This proposed change is intended to
revise Virginia’s rule to be consistent
with the counterpart Federal rule. Thin
overburden is addressed under Virginia
rule 4 VAC 25–130–816.104. This
provision is amended as follows: The
term ‘‘Thin’’ is deleted and replaced by
the term ‘‘Thick’’ in subsection (a); the
term ‘‘insufficient’’ is deleted and
replaced by ‘‘more than sufficient’’ in
subsection (a); the term ‘‘less’’ is deleted
and replaced by the term ‘‘more’’ in
subsection (a); and the term ‘‘thin’’ is
deleted and replaced by the term
‘‘thick’’ in subsection (b). As amended
this provision provides as follows:
(a) Thick overburden exists when spoil and
other waste materials available from the
entire permit area is more than sufficient to
restore the disturbed area to its approximate
original contour. More than sufficient spoil
and other waste materials occur where the
overburden thickness times the swell factor,
plus the thickness of other available waste
materials, is more than the combined
thickness of the overburden and coal bed
prior to removing the coal, so that after
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backfill and grading the surface configuration
of the reclaimed area would not:
(1) Closely resemble the surface
configuration of the land prior to mining; or
(2) Blend into and complement the
drainage pattern of the surrounding terrain.
(b) Where thick overburden occurs within
the permit area, the permittee at a minimum
shall:
(1) Restore the approximate original
contour and then use the remaining spoil and
other waste materials to attain the lowest
practicable grade, but not more than the
angle of repose;
(2) Meet the requirements of 4VAC25–130–
816.102(a)(2) through (j); and
(3) Dispose of any excess spoil in
accordance with 4VAC25–130–816.71
through 4VAC25–130–816.75.
11. 4 VAC 25–130–817.11 Signs and
markers.
New Subsection (a)(4) is added and
existing subsection (a)(4) is redesignated
as (a)(5). New subsection (a)(4) provides
as follows:
(a) Specifications. Signs and markers
required under this Part shall —
(4) For permit boundary markers on areas
that are located on steep slopes above private
dwellings or other occupied dwellings, be
made of or marked with fluorescent or
reflective paint or material; and
12. 4 VAC 25–130–817.43
Diversions.
New Subsection (d) is added and
existing Subsection (d) is redesignated
as Subsection (e). As amended, new
Subsection (d) provides as follows:
(d) In lieu of the requirements of
paragraphs (a)(2) through (a)(9), (b)(2)
through (b)(6) and (c)(1) through (c)(3) of this
section, a natural stream restoration channel
design approved by the U.S. Army Corps of
Engineers as part of an approved U.S. Army
Corps of Engineers permit shall be deemed to
meet the requirements of this section.
13. 4 VAC 25–130–817.64 Use of
explosives; general performance
standards.
New Subsection (d) is added and
provides as follows:
(d) Seismic monitoring shall be conducted
when blasting operations on coal surface
mining operations are conducted within
1,000 feet of a private dwelling or other
occupied building.
14. 4 VAC 25–130–817.121
Subsidence control.
This provision is amended by deleting
Subsections (c)(4)(i)–(iv) and
redesignating Subsection (c)(4)(v) as
subsection (c)(4). The DMME stated that
this provision was amended to delete
those requirements that are counterpart
to Federal regulations that were
suspended effective December 22, 1999
(64 FR 71652). This provision had
created a rebuttable presumption that
underground mining caused subsidence,
where the subsidence damage occurred
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35201
within the angle of draw. As amended,
Subsection (c)(4) provides as follows:
(4) Information to be considered in
determination of causation. In a
determination whether damage to protected
structures was caused by subsidence from
underground mining, all relevant and
reasonably available information will be
considered by the division.
15. 4 VAC 25–130–842.15 Review of
decision not to inspect or enforce.
The proposed amendment revises
Subsection (d) by changing the citation
of the Virginia Code section from ‘‘9–
6.14:1’’ to ‘‘2.2–4000A.’’
16. 4 VAC 25–130–843.12 Notices of
violation.
The proposed amendment revises
Subsection (j) by changing the citation
of the Virginia Code section from ‘‘9–
6.14:1’’ to ‘‘2.2–4000A.’’
17. 4 VAC 25–130–843.13
Suspension or revocation of permits;
pattern of violations.
The proposed amendment revises
Subsection (b) by changing the citation
of the Virginia Code section from ‘‘9–
6.14:12’’ to ‘‘2.2–4020.’’ Subsection (e)
is amended by clarifying that the
‘‘Division of Mined Land Reclamation’’
is now the ‘‘Department of Mines,
Minerals, and Energy.’’ As amended,
Subsection (e) provides as follows:
(e) All requests for hearing, or appeals for
review and reconsideration made under this
section; and all notices of appeal for judicial
review of a Hearing Officer’s final decision,
or the final decision on review and
reconsideration shall be filed with the
Director, Department of Mines, Minerals and
Energy, Post Office Drawer 900, Big Stone
Gap, Virginia 24219.
18. 4 VAC 25–130–843.15. Informal
public hearing.
The amendment revises Subsection
(c) by changing the citation of the
Virginia Code section from ‘‘9–6.14:11’’
to ‘‘2.2–4019.’’
19. 4 VAC 25–130–843.16 Formal
review of citations.
Subsection (e) is amended by
clarifying that the ‘‘Division of Mined
Land Reclamation’’ is now the
‘‘Department of Mines, Minerals, and
Energy.’’ As amended, Subsection (e)
provides as follows:
(e) All requests for hearing before a Hearing
Officer, or appeals for review and
reconsideration, made under this section,
and all notices of appeal for judicial review
of a Hearing Officer’s final decision or a final
decision on review and reconsideration, shall
be filed with the Director, Department of
Mines, Minerals and Energy, Post Office
Drawer 900, Big Stone Gap, Virginia 24219.
20. 4 VAC 25–130–845.13 Point
System.
Subsections (c)(1) and (d) are
amended to correct typographical errors.
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At Subsection (c)(1), the phrase ‘‘(a)
and’’ is added immediately before ‘‘(b),’’
and the phrase ‘‘and (c)’’ is deleted. As
amended, Subsection (c)(1) provides as
follows:
(c) Credit for good faith in attempting to
achieve compliance.
(1) The division shall deduct from the total
points assigned under Subsections (a) and (b)
points based on the demonstrated good faith
of the permittee in attempting to achieve
rapid compliance after notification of the
violation. Points shall be deducted as
follows.
Subsection (d) is amended by adding
‘‘(a),’’ immediately before ‘‘(b);’’ adding
‘‘and’’ immediately following ‘‘(b),’’ and
deleting ‘‘and (d)’’ immediately
following (c). As amended, the language
of Subsection (d) provides as follows:
(d) Determination of base penalty. The
division shall determine the base amount of
any civil penalty by converting the total
number of points calculated under
Subsections (a), (b), and (c), of this section to
a dollar amount, according to the following
schedule.
Subsection (e), concerning credit for
additional penalties for previous history
is amended at (e)(1) by adding the
words ‘‘[e]xcept for a violation that
resulted in personal injury or fatality to
any person.’’ As amended, Subsection
(e)(1) provides as follows:
(1) Except for a violation that resulted in
personal injury or fatality to any person, the
division shall reduce the base penalty
determined under Subsection (d) by 10% if
the permittee has had no violations cited by
the division within the preceding 12-month
period.
Subsection (f), concerning maximum
penalty which the division may assess,
is amended by adding the words
‘‘except that if the violation resulted in
a personal injury or fatality to any
person, then the civil penalty
determined under Subsection (d) shall
be multiplied by a factor of twenty (20),
not to exceed $70,000.’’ As amended,
Subsection (f) provides as follows:
(f) The maximum penalty which the
division may assess under this section for
each cessation order or notice of violation
shall be $5,000, except that if the violation
resulted in a personal injury or fatality to any
person, then the civil penalty determined
under Subsection (d) shall be multiplied by
a factor of twenty (20), not to exceed $70,000.
As provided in 4 VAC 25–130–845.15, each
day of continuing violation may be deemed
a separate violation for the purpose of
assessing penalties.
21. 4 VAC 25–130–845.15
Assessment of separate violations for
each day.
Subsection (a) is amended in the last
sentence by adding the words ‘‘or more’’
immediately following the words ‘‘a
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penalty of $5,000.’’ As amended,
Subsection (a) provides as follows:
(a) The division may assess separately a
civil penalty for each day from the date of
issuance of the notice of violation or
cessation order to the date set for abatement
of the violation. In determining whether to
make such an assessment, the division shall
consider the factors listed in 4 VAC 25–130–
845.13 and may consider the extent to which
the person to whom the notice or order was
issued gained any economic benefit as a
result of a failure to comply. For any
violation which continues for two or more
days and which has been assigned a penalty
of $5,000 or more under 4 VAC 25–130–
845.13, the division shall assess a penalty for
a minimum of two separate days.
22. 4 VAC 25–130–845.18
Procedures for assessment conference.
The proposed amendment revises
subsection (b)(1) by changing the
citation of the Virginia Code sections
from ‘‘9–6.14:11’’ to ‘‘2.2–4019.’’
23. 4 VAC 25–130–845.19 Request
for hearing.
The proposed amendment revises
Subsection (c) by changing the citation
of the Virginia Code sections from ‘‘9–
6.14:12’’ to ‘‘2.2–4020.’’
New Subsection (d) is added to
provide as follows:
All requests for hearing or appeals for
review and reconsideration made under this
section shall be filed with the Director,
Department of Mines, Minerals and Energy,
Post Office Drawer 900, Big Stone Gap,
Virginia 24219.
24. 4 VAC 25–130–846.14 Amount
of the individual civil penalty.
Subsection (b) is amended by adding
new language to the end of the first
sentence. As amended, Subsection (b)
provides as follows:
(b) The penalty shall not exceed $5,000 for
each violation, except that if the violation
resulted in a personal injury or fatality to any
person, then the civil penalty determined
under 4 VAC 25–130–845.13(d) shall be
multiplied by a factor of twenty (20), not to
exceed $70,000. Each day of a continuing
violation may be deemed a separate violation
and the division may assess a separate
individual civil penalty for each day the
violation, failure or refusal continues, from
the date of service of the underlying notice
of violation, cessation order or other order
incorporated in a final decision issued by the
Director, until abatement or compliance is
achieved.
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
approve the amendment, it will become
part of the Virginia program.
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Written Comments
Send your written or electronic
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
Big Stone Gap Field Office may not be
logged in.
Electronic Comments
Please submit Internet comments as
an ASCII Word file avoiding the use of
special characters and any form of
encryption. Please also include Attn:
SATS NO. VA–122–FOR and your name
and return address in your Internet
message. If you do not receive a
confirmation that we have received your
Internet message, contact the Big Stone
Gap Field office at (540) 523–4303.
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 July 5, 2005. 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
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Federal Register / Vol. 70, No. 116 / Friday, June 17, 2005 / Proposed Rules
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
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.
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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 federallyrecognized 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
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35203
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.
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35204
Federal Register / Vol. 70, No. 116 / Friday, June 17, 2005 / Proposed Rules
Dated: May 23, 2005.
James M. Taitt,
Acting Regional Director, Appalachian
Regional Coordinating Center.
[FR Doc. 05–11979 Filed 6–16–05; 8:45 am]
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
ENVIRONMENTAL PROTECTION
AGENCY
comments in a subsequent final deletion
notice based on this notice of intent to
delete. EPA will not institute a second
comment period on this notice of intent
to delete. Any parties interested in
commenting must do so at this time. For
additional information, see the direct
final notice of deletion which is located
in the Rules section of this Federal
Register.
40 CFR Part 300
DATES:
Comments concerning this Site
must be received by July 18, 2005.
Medicare Program; Medicare Integrity
Program, Fiscal Intermediary and
Carrier Functions, and Conflict of
Interest Requirements
BILLING CODE 4310–05–U
[FRL–7924–4]
National Oil and Hazardous Substance
Pollution Contingency Plan National
Priorities List
Environmental Protection
Agency.
ACTION: Notice of intent to delete the
Metropolitan Mirror and Glass (MM&G)
Superfund Site from the National
Priorities List.
AGENCY:
SUMMARY: The Environmental Protection
Agency (EPA) Region 3 is issuing a
notice of intent to delete MM&G
Superfund Site (Site) located in
Frackville, Schuylkill County,
Commonwealth of Pennsylvania, from
the National Priorities List (NPL) and
requests public comments on this notice
of intent. The NPL, promulgated
pursuant to section 105 of the
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) of 1980, as amended, is
found at appendix B of 40 CFR part 300
which is the National Oil and
Hazardous Substances Pollution
Contingency Plan (NCP). The EPA and
the State of Pennsylvania, through the
Pennsylvania Department of
Environmental Protection (PADEP),
have determined that all appropriate
response actions under CERCLA have
been completed. However, this deletion
does not preclude future actions under
Superfund.
In the ‘‘Rules and Regulations’’
section of today’s Federal Register, EPA
is publishing a direct final notice of
deletion of MM&G Superfund Site
without prior notice of intent to delete
because EPA views this as a
noncontroversial revision and anticipate
no adverse comment. EPA has
explained its reasons for this deletion in
the preamble to the direct final notice of
deletion. If no adverse comment(s) are
received on this notice of intent to
delete or the direct final notice of
deletion, EPA will not take further
action on this notice of intent to delete.
If adverse comment(s) are received, EPA
will withdraw the direct final notice of
deletion and it will not take effect. EPA
will, as appropriate, address all public
VerDate jul<14>2003
16:15 Jun 16, 2005
Jkt 205001
Written comments should
be addressed to: David Polish,
Community Involvement Coordinator,
U.S. EPA (3HS43), 1650 Arch Street,
Philadelphia, PA 19103–2029,
polish.david@epa.gov, (215) 814–3327
or (800) 553–2509.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Eugene Dennis, Remedial Project
Manager, U.S. EPA (3HS21), 1650 Arch
Street, Philadelphia, PA 19103–2029,
(215) 814–3202 or (800) 553–2509.
For
additional information, see the Direct
Final Notice of Deletion which is
located in the Rules section of this
Federal Register.
Information Repositories: Repositories
have been established to provide
detailed information concerning this
decision at the following address: U.S.
EPA Region 3 Regional Center for
Environmental Information, 1650 Arch
Street, Philadelphia, Pennsylvania,
19103, (215) 814–5254 or (800) 553–
2509, Monday through Friday 8 a.m. to
4:30 p.m.; West Mahanoy Township
Building, 190 Pennsylvania Avenue,
Shenandoah, Pennsylvania 17976, (570)
462–2958.
SUPPLEMENTARY INFORMATION:
List of Subjects in 40 CFR Part 300
Environmental protection, Air
pollution control, Chemicals, Hazardous
substances, Hazardous waste,
Intergovernmental relations, Penalties,
Reporting and recordkeeping
requirements, Superfund, Water
pollution control, Water supply.
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C.
9601–9657; E.O 12777, 56 FR 54757, 3 CFR,
1991 Comp., p.351; E.O. 12580, 52 FR 2923;
3 CFR, 1987 Comp., p193.
Dated: May 31, 2005.
Richard J. Kampf,
Acting Regional Administrator, Region 3.
[FR Doc. 05–11828 Filed 6–16–05; 8:45 am]
BILLING CODE 6560–50–P
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Centers for Medicare and Medicaid
Services
42 CFR Parts 400 and 421
[CMS–6030–P2]
RIN 0938–AN72
Centers for Medicare &
Medicaid Services (CMS), HHS.
ACTION: Proposed rule.
AGENCY:
SUMMARY: This proposed rule would
establish the Medicare Integrity Program
(MIP) and implement program integrity
activities that are funded from the
Federal Hospital Insurance Trust Fund.
This proposed rule would set forth the
definition of eligible entities; services to
be procured; competitive requirements
based on Federal acquisition regulations
and exceptions (guidelines for
automatic renewal); procedures for
identification, evaluation, and
resolution of conflicts of interest; and
limitations on contractor liability.
This proposed rule would bring
certain sections of the Medicare
regulations concerning fiscal
intermediaries and carriers into
conformity with the Social Security Act
(the Act). The rule would distinguish
between those functions that the statute
requires to be included in agreements
with fiscal intermediaries and those that
may be included in the agreements. It
would also provide that some or all of
the functions may be included in carrier
contracts. Currently all these functions
are mandatory for carrier contracts.
DATES: To be assured consideration,
comments must be received at one of
the addresses provided below, no later
than 5 p.m. e.d.t on August 16, 2005.
ADDRESSES: In commenting, please refer
to file code CMS–6030–P2. Because of
staff and resource limitations, we cannot
accept comments by facsimile (FAX)
transmission.
You may submit comments in one of
three ways (no duplicates, please):
1. Electronically. You may submit
electronic comments to https://
www.cms.hhs.gov/regulations/
ecomments, (attachments should be in
Microsoft Word, WordPerfect, or Excel;
however, we prefer Microsoft Word).
2. By mail. You may mail written
comments (one original and two copies)
to the following address ONLY: Centers
for Medicare & Medicaid Services,
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]]>Agencies
[Federal Register Volume 70, Number 116 (Friday, June 17, 2005)]
[Proposed Rules]
[Pages 35199-35204]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-11979]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 946
[VA-122-FOR]
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.
-----------------------------------------------------------------------
SUMMARY: We are announcing receipt of a proposed 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. The
amendment reflects changes in renumbering of the Virginia Code section
references of the Virginia Administrative Process Act; clarifies the
filing of requests for formal hearing and judicial review; revisions of
the Virginia rules to be consistent with amendments to the Federal
rules; revisions to allow approval of natural stream restoration
channel design; regulation changes to implement requirements of
Virginia HB 2573 (enacted as emergency legislation); and corrections of
typographical errors.
DATES: We will accept written comments on this amendment until 4 p.m.
(local time), on July 18, 2005. If requested, we will hold a public
hearing on the amendment on July 12, 2005. We will accept requests to
speak at the hearing until 4 p.m. (local time), on July 5, 2005.
ADDRESSES: You may submit comments, identified by VA-122-FOR, by any of
the following methods:
E-mail: rpenn@osmre.gov. Include VA-122-FOR in the subject
line of the message.
Mail/Hand Delivery: Mr. Robert A. Penn, Director, Big
Stone Gap Field Office, Office of Surface Mining Reclamation and
Enforcement, 1941 Neeley Road, Suite 201, Compartment 116, Big Stone
Gap, Virginia 24219.
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency
docket number for this rulemaking. For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Comment Procedures'' heading in the
SUPPLEMENTARY INFORMATION section of
[[Page 35200]]
this document. You may also request to speak at a public hearing by any
of the methods listed above or by contacting the individual listed
under FOR FURTHER INFORMATION CONTACT.
Docket: You may review copies of the 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 Big Stone Gap Field Office.
Mr. Robert A. Penn, Director, Big Stone Gap Field Office, Office of
Surface Mining Reclamation and Enforcement, 1941 Neeley Road, Suite
201, Compartment 116, Big Stone Gap, Virginia 24219, Telephone: (540)
523-4303. E-mail: rpenn@osmre.gov.
Mr. Leslie S. Vincent, Virginia Division of Mined Land Reclamation,
P.O. Drawer 900, Big Stone Gap, Virginia 24219, Telephone: (540) 523-
8100. E-mail: lsv@mme.state.va.us.
FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big
Stone Gap Field Office; Telephone: (540) 523-4303. Internet:
rpenn@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Virginia Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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.
II. Description of the Proposed Amendment
By letter dated May 9, 2005 (Administrative Record Number VA-1048),
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 Virginia Coal Surface Mining
Reclamation Regulations to reflect the changes in the renumbering of
the Virginia Code section references of the Virginia Administrative
Process Act; clarifies the filing of requests for formal hearing and
judicial review; revises the Virginia rules to make them consistent
with amendments to the Federal rules; revises its rules to allow
approval of natural stream restoration channel design; changes its
regulation to implement requirements of Virginia HB 2573 (enacted as
emergency legislation in Chapter 3 of the 2005 Virginia Acts of
Assembly); and corrects typographical errors. Specifically, the
following amendments are proposed:
1. 4 VAC 25-130-700.12 Petitions to initiate rulemaking.
The proposed amendment revises subsection (e) by changing the
citation of the Virginia Code section from ``9-6.14:1'' to ``2.2-
4000A.''
2. 4 VAC 25-130-773.21 Improvidently issued permits; Rescission
procedures.
The proposed amendment revises subsection (c), right to appeal, by
changing the citation of Virginia Code section from ``9-6.14:1'' to
``2.2-4000A.''
3. 4 VAC 25-130-775.11 Administrative Review.
The proposed amendment revises subsection (b)(1) by changing the
citation of the Virginia Code section from ``9-6.14:12'' to ``2.2-
4020.'' In addition, new subsection (d) is added to provide as follows:
(d) All requests for hearing or appeals for review and
reconsideration made under this section shall be filed with the
Director, Department of Mines, Minerals and Energy, Post Office
Drawer 900, Big Stone Gap, Virginia 24219.
4. 4 VAC 25-130-775.13 Judicial Review.
New subsection (c) is added to provide as follows:
(c) All notices of appeal for judicial review of a Hearing
Officer's final decision, or the final decision on review and
reconsideration, shall be filed with the Director, Department of
Mines, Minerals and Energy, Post Office Drawer 900, Big Stone Gap,
Virginia 24219.
5. 4 VAC 25-130-784.20 Subsidence Control Plan.
Subsection (a)(3) is amended by deleting language concerning
presubsidence survey requirements. The DMME stated that the provision
was amended to delete those requirements that are counterpart to
Federal regulations that were suspended effective December 22, 1999 (64
FR 71652). The following language is being deleted: ``condition of all
noncommercial buildings or occupied residential dwellings and
structures related thereto, that may be materially damaged or for which
the reasonably foreseeable use may be diminished by subsidence, within
the area encompassed by the applicable angle of draw; as well as a
survey of the.'' In addition, the following language is being deleted:
``premining condition or value of such noncommercial buildings or
occupied residential dwellings and structures related thereto and
the.'' As revised, Subsection (a)(3) provides as follows:
(3) A survey of the quantity and quality of all drinking,
domestic and residential water supplies within the permit area and
adjacent area that could be contaminated, diminished, or interrupted
by subsidence. If the applicant cannot make this survey because the
owner will not allow access to the site, the applicant will notify
the owner in writing of the effect that denial of access will have
as described in 4VAC25-130-817.121(c)(4). The applicant must pay for
any technical assessment or engineering evaluation used to determine
the quantity and quality of drinking, domestic, or residential water
supplies. The applicant must provide copies of the survey and any
technical assessment or engineering evaluation to the property owner
and the division.
6. 4 VAC 25-130-800.51 Administrative review of performance bond
forfeiture.
Subsection (c)(1) is amended by changing the citation of the
Virginia Code sections from ``9-6.14:12'' to ``2.2-4020.''
Subsection (e) is amended by clarifying that the ``Division of
Mined Land Reclamation'' is now the ``Department of Mines, Minerals and
Energy.'' As amended, Subsection (e) provides as follows:
(e) All requests for hearing, or appeals for review and
reconsideration made under this section; and all notices of appeal
for judicial review of a Hearing Officer's final decision, or the
final decision on review and reconsideration shall be filed with the
Director, Department of Mines, Minerals and Energy, Post Office
Drawer 900, Big Stone Gap, Virginia 24219.
7. 4 VAC 25-130-816.11 Signs and markers.
New Subsection (a)(4) is added and existing (a)(4) is redesignated
as (a)(5).
[[Page 35201]]
As amended, Subsection (a) provides as follows:
(a) Specifications. Signs and markers required under this Part
shall--
(1) Be posted, maintained, and removed by the person who
conducts the surface mining activities;
(2) Be of a uniform design throughout the operation that can be
easily seen and read;
(3) Be made of durable material;
(4) For permit boundary markers on areas that are located on
steep slopes above private dwellings or other occupied buildings, be
made of or marked with fluorescent or reflective paint or material;
and
(5) Conform to local ordinances and codes.
8. 4 VAC 25-130-816.43 Diversions.
New Subsection (d) is added, and existing Subsection (d) is
redesignated as Subsection (e). New Subsection (d) provides as follows:
(d) In lieu of the requirements of paragraphs (a)(2) through
(a)(9), (b)(2) through (b)(6) and (c)(1) through (c)(3) of this
section, a natural stream restoration channel design approved by the
U.S. Army Corps of Engineers as part of an approved U.S. Army Corps
of Engineers permit shall be deemed to meet the requirements of this
section.
9. 4 VAC 25-130-816.64 Use of explosives; blasting schedule.
New Subsection (a)(4) concerning seismic monitoring is added and
provides as follows:
(4) Seismic monitoring shall be conducted when blasting
operations on coal surface mining operations are conducted within
1,000 feet of a private dwelling or other occupied building.
10. 4 VAC 25-130-816.105 Backfilling and grading; thick overburden.
This proposed change is intended to revise Virginia's rule to be
consistent with the counterpart Federal rule. Thin overburden is
addressed under Virginia rule 4 VAC 25-130-816.104. This provision is
amended as follows: The term ``Thin'' is deleted and replaced by the
term ``Thick'' in subsection (a); the term ``insufficient'' is deleted
and replaced by ``more than sufficient'' in subsection (a); the term
``less'' is deleted and replaced by the term ``more'' in subsection
(a); and the term ``thin'' is deleted and replaced by the term
``thick'' in subsection (b). As amended this provision provides as
follows:
(a) Thick overburden exists when spoil and other waste materials
available from the entire permit area is more than sufficient to
restore the disturbed area to its approximate original contour. More
than sufficient spoil and other waste materials occur where the
overburden thickness times the swell factor, plus the thickness of
other available waste materials, is more than the combined thickness
of the overburden and coal bed prior to removing the coal, so that
after backfill and grading the surface configuration of the
reclaimed area would not:
(1) Closely resemble the surface configuration of the land prior
to mining; or
(2) Blend into and complement the drainage pattern of the
surrounding terrain.
(b) Where thick overburden occurs within the permit area, the
permittee at a minimum shall:
(1) Restore the approximate original contour and then use the
remaining spoil and other waste materials to attain the lowest
practicable grade, but not more than the angle of repose;
(2) Meet the requirements of 4VAC25-130-816.102(a)(2) through
(j); and
(3) Dispose of any excess spoil in accordance with 4VAC25-130-
816.71 through 4VAC25-130-816.75.
11. 4 VAC 25-130-817.11 Signs and markers.
New Subsection (a)(4) is added and existing subsection (a)(4) is
redesignated as (a)(5). New subsection (a)(4) provides as follows:
(a) Specifications. Signs and markers required under this Part
shall --
(4) For permit boundary markers on areas that are located on
steep slopes above private dwellings or other occupied dwellings, be
made of or marked with fluorescent or reflective paint or material;
and
12. 4 VAC 25-130-817.43 Diversions.
New Subsection (d) is added and existing Subsection (d) is
redesignated as Subsection (e). As amended, new Subsection (d) provides
as follows:
(d) In lieu of the requirements of paragraphs (a)(2) through
(a)(9), (b)(2) through (b)(6) and (c)(1) through (c)(3) of this
section, a natural stream restoration channel design approved by the
U.S. Army Corps of Engineers as part of an approved U.S. Army Corps
of Engineers permit shall be deemed to meet the requirements of this
section.
13. 4 VAC 25-130-817.64 Use of explosives; general performance
standards.
New Subsection (d) is added and provides as follows:
(d) Seismic monitoring shall be conducted when blasting
operations on coal surface mining operations are conducted within
1,000 feet of a private dwelling or other occupied building.
14. 4 VAC 25-130-817.121 Subsidence control.
This provision is amended by deleting Subsections (c)(4)(i)-(iv)
and redesignating Subsection (c)(4)(v) as subsection (c)(4). The DMME
stated that this provision was amended to delete those requirements
that are counterpart to Federal regulations that were suspended
effective December 22, 1999 (64 FR 71652). This provision had created a
rebuttable presumption that underground mining caused subsidence, where
the subsidence damage occurred within the angle of draw. As amended,
Subsection (c)(4) provides as follows:
(4) Information to be considered in determination of causation.
In a determination whether damage to protected structures was caused
by subsidence from underground mining, all relevant and reasonably
available information will be considered by the division.
15. 4 VAC 25-130-842.15 Review of decision not to inspect or
enforce.
The proposed amendment revises Subsection (d) by changing the
citation of the Virginia Code section from ``9-6.14:1'' to ``2.2-
4000A.''
16. 4 VAC 25-130-843.12 Notices of violation.
The proposed amendment revises Subsection (j) by changing the
citation of the Virginia Code section from ``9-6.14:1'' to ``2.2-
4000A.''
17. 4 VAC 25-130-843.13 Suspension or revocation of permits;
pattern of violations.
The proposed amendment revises Subsection (b) by changing the
citation of the Virginia Code section from ``9-6.14:12'' to ``2.2-
4020.'' Subsection (e) is amended by clarifying that the ``Division of
Mined Land Reclamation'' is now the ``Department of Mines, Minerals,
and Energy.'' As amended, Subsection (e) provides as follows:
(e) All requests for hearing, or appeals for review and
reconsideration made under this section; and all notices of appeal
for judicial review of a Hearing Officer's final decision, or the
final decision on review and reconsideration shall be filed with the
Director, Department of Mines, Minerals and Energy, Post Office
Drawer 900, Big Stone Gap, Virginia 24219.
18. 4 VAC 25-130-843.15. Informal public hearing.
The amendment revises Subsection (c) by changing the citation of
the Virginia Code section from ``9-6.14:11'' to ``2.2-4019.''
19. 4 VAC 25-130-843.16 Formal review of citations.
Subsection (e) is amended by clarifying that the ``Division of
Mined Land Reclamation'' is now the ``Department of Mines, Minerals,
and Energy.'' As amended, Subsection (e) provides as follows:
(e) All requests for hearing before a Hearing Officer, or
appeals for review and reconsideration, made under this section, and
all notices of appeal for judicial review of a Hearing Officer's
final decision or a final decision on review and reconsideration,
shall be filed with the Director, Department of Mines, Minerals and
Energy, Post Office Drawer 900, Big Stone Gap, Virginia 24219.
20. 4 VAC 25-130-845.13 Point System.
Subsections (c)(1) and (d) are amended to correct typographical
errors.
[[Page 35202]]
At Subsection (c)(1), the phrase ``(a) and'' is added immediately
before ``(b),'' and the phrase ``and (c)'' is deleted. As amended,
Subsection (c)(1) provides as follows:
(c) Credit for good faith in attempting to achieve compliance.
(1) The division shall deduct from the total points assigned
under Subsections (a) and (b) points based on the demonstrated good
faith of the permittee in attempting to achieve rapid compliance
after notification of the violation. Points shall be deducted as
follows.
Subsection (d) is amended by adding ``(a),'' immediately before
``(b);'' adding ``and'' immediately following ``(b),'' and deleting
``and (d)'' immediately following (c). As amended, the language of
Subsection (d) provides as follows:
(d) Determination of base penalty. The division shall determine
the base amount of any civil penalty by converting the total number
of points calculated under Subsections (a), (b), and (c), of this
section to a dollar amount, according to the following schedule.
Subsection (e), concerning credit for additional penalties for
previous history is amended at (e)(1) by adding the words ``[e]xcept
for a violation that resulted in personal injury or fatality to any
person.'' As amended, Subsection (e)(1) provides as follows:
(1) Except for a violation that resulted in personal injury or
fatality to any person, the division shall reduce the base penalty
determined under Subsection (d) by 10% if the permittee has had no
violations cited by the division within the preceding 12-month
period.
Subsection (f), concerning maximum penalty which the division may
assess, is amended by adding the words ``except that if the violation
resulted in a personal injury or fatality to any person, then the civil
penalty determined under Subsection (d) shall be multiplied by a factor
of twenty (20), not to exceed $70,000.'' As amended, Subsection (f)
provides as follows:
(f) The maximum penalty which the division may assess under this
section for each cessation order or notice of violation shall be
$5,000, except that if the violation resulted in a personal injury
or fatality to any person, then the civil penalty determined under
Subsection (d) shall be multiplied by a factor of twenty (20), not
to exceed $70,000. As provided in 4 VAC 25-130-845.15, each day of
continuing violation may be deemed a separate violation for the
purpose of assessing penalties.
21. 4 VAC 25-130-845.15 Assessment of separate violations for each
day.
Subsection (a) is amended in the last sentence by adding the words
``or more'' immediately following the words ``a penalty of $5,000.'' As
amended, Subsection (a) provides as follows:
(a) The division may assess separately a civil penalty for each
day from the date of issuance of the notice of violation or
cessation order to the date set for abatement of the violation. In
determining whether to make such an assessment, the division shall
consider the factors listed in 4 VAC 25-130-845.13 and may consider
the extent to which the person to whom the notice or order was
issued gained any economic benefit as a result of a failure to
comply. For any violation which continues for two or more days and
which has been assigned a penalty of $5,000 or more under 4 VAC 25-
130-845.13, the division shall assess a penalty for a minimum of two
separate days.
22. 4 VAC 25-130-845.18 Procedures for assessment conference.
The proposed amendment revises subsection (b)(1) by changing the
citation of the Virginia Code sections from ``9-6.14:11'' to ``2.2-
4019.''
23. 4 VAC 25-130-845.19 Request for hearing.
The proposed amendment revises Subsection (c) by changing the
citation of the Virginia Code sections from ``9-6.14:12'' to ``2.2-
4020.''
New Subsection (d) is added to provide as follows:
All requests for hearing or appeals for review and
reconsideration made under this section shall be filed with the
Director, Department of Mines, Minerals and Energy, Post Office
Drawer 900, Big Stone Gap, Virginia 24219.
24. 4 VAC 25-130-846.14 Amount of the individual civil penalty.
Subsection (b) is amended by adding new language to the end of the
first sentence. As amended, Subsection (b) provides as follows:
(b) The penalty shall not exceed $5,000 for each violation,
except that if the violation resulted in a personal injury or
fatality to any person, then the civil penalty determined under 4
VAC 25-130-845.13(d) shall be multiplied by a factor of twenty (20),
not to exceed $70,000. Each day of a continuing violation may be
deemed a separate violation and the division may assess a separate
individual civil penalty for each day the violation, failure or
refusal continues, from the date of service of the underlying notice
of violation, cessation order or other order incorporated in a final
decision issued by the Director, until abatement or compliance is
achieved.
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 approve the amendment, it
will become part of the Virginia program.
Written Comments
Send your written or electronic 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 Big Stone Gap Field Office may not be
logged in.
Electronic Comments
Please submit Internet comments as an ASCII Word file avoiding the
use of special characters and any form of encryption. Please also
include Attn: SATS NO. VA-122-FOR and your name and return address in
your Internet message. If you do not receive a confirmation that we
have received your Internet message, contact the Big Stone Gap Field
office at (540) 523-4303.
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
July 5, 2005. 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
[[Page 35203]]
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 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 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.
[[Page 35204]]
Dated: May 23, 2005.
James M. Taitt,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 05-11979 Filed 6-16-05; 8:45 am]
BILLING CODE 4310-05-U
