Virginia Regulatory Program, 59009-59012 [E7-20559]
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Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Rules and Regulations
a substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). This determination
is based upon 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,
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
§ 914.16
Dated: September 27, 2007.
William Joseph,
Acting Regional Director, Mid-Continent
Regional Office.
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
For the reasons set out in the
preamble, 30 CFR part 914 is amended
as set forth below:
I
PART 914—INDIANA
1. The authority citation for part 914
continues to read as follows:
I
Authority: 30 U.S.C. 1201 et seq.
2. Section 914.15 is amended in the
table by adding a new entry in
chronological order by ‘‘Date of final
publication’’ to read as follows:
I
§ 914.15 Approval of Indiana regulatory
program amendments.
*
*
*
*
*
*
*
*
*
312 IAC 25–1–57; 25–4–87; 25–5–16(a), (b) [new], and (c) [formerly (b)]; 25–
6–20; 25–6–66; and 25–7–1.
3. Section 914.16 is amended by
removing paragraph (ff) and removing
reserved paragraphs (gg) through (mm).
I
[FR Doc. 07–5144 Filed 10–17–07; 8:45 am]
BILLING CODE 4310–05–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 946
[VA–125–FOR]
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.
Effective Date: October 18, 2007.
Mr.
Earl Bandy, Director, Knoxville Field
Office; Telephone: (276) 523–4303.
Internet: ebandy@osmre.gov.
DATES:
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Virginia Regulatory Program
Office of Surface Mining
Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of
amendment.
AGENCY:
yshivers on PROD1PC62 with RULES
Intergovernmental relations, Surface
mining, Underground mining.
Citation/description
[Amended]
SUMMARY: We are approving an
amendment to the Virginia regulatory
program under the Surface Mining
16:50 Oct 17, 2007
List of Subjects in 30 CFR Part 914
*
October 18, 2007 ......
*
VerDate Aug<31>2005
and are not expected to have a
substantive effect on the regulated
industry.
Date of final
publication
Original amendment submission date
*
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.
59009
Jkt 214001
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
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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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Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Rules and Regulations
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:
yshivers on PROD1PC62 with RULES
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, § 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
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14:36 Oct 17, 2007
Jkt 214001
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:
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
Any determination made under paragraph
decision, assuming the decision is
(b) of this section [pertaining to requests for
informal review] shall constitute a decision
mailed two days after its issuance, and
of OSM within the meaning of 43 CFR 4.1281 assuming delivery occurs no later than
and shall contain a right of appeal to the
3 days after mailing. With the
Office of Hearings and Appeals in accordance
understanding that the DMME will
with 43 CFR part 4.
apply this policy to informal review
The Federal regulations promulgated by decisions, and that the DMME will serve
the Office of Hearings and Appeals, and all informal review decisions via
applicable to formal appeals of OSM’s
certified mail, we find that the
decisions on informal review, are at 43
amendment to 4 VAC 25–130–842.15(d)
CFR 4.1280–4.1286. The time allowed
is no less effective than the Federal
for requesting formal review is set forth
regulations at 30 CFR 842.15(d) and 43
in 43 CFR 4.1282(b), which states that:
CFR 4.1282(b). The remainder of the
amendment, pertaining to the
The notice of appeal shall be filed within
20 days from the date of receipt of the
identification of the entity with whom
decision. If the person appealing has not been a request for review should be filed, is
served with a copy of the decision, such
no less effective than the
appeal must be filed within 30 days of the
aforementioned Federal regulations. The
date of the decision.
amendment is, therefore, approved.
(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 ‘‘MailingAdministrative 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
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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
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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.
yshivers on PROD1PC62 with RULES
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
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14:36 Oct 17, 2007
Jkt 214001
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 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 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,
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59011
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,
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Federal Register / Vol. 72, No. 201 / Thursday, October 18, 2007 / Rules and Regulations
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.
Dated: September 27, 2007.
H. Vann Weaver,
Acting Regional Director, Appalachian
Region.
List of Subjects in 30 CFR Part 946
Intergovernmental relations, Surface
mining, Underground mining.
*
Original amendment submission date
Date of final
publication
*
*
March 12, 2007 .....................................
*
October 18, 2007 ......
[FR Doc. E7–20559 Filed 10–17–07; 8:45 am]
BILLING CODE 4310–05–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[CGD01–07–148]
Drawbridge Operation Regulations;
Taunton River, Fall River and
Somerset, MA
Coast Guard, DHS.
Notice of temporary deviation
from regulations.
AGENCY:
yshivers on PROD1PC62 with RULES
ACTION:
SUMMARY: The Commander, First Coast
Guard District, has issued a temporary
deviation from the regulation governing
the operation of the old Brightman
Street bascule bridge across the Taunton
River at mile 1.8, between Fall River
and Somerset, Massachusetts. Under
this temporary deviation, in effect from
6 a.m. on October 13, 2007 through 5
p.m. on October 27, 2007, the bridge
shall open on signal after a one-hour
advance notice is given by calling the
number posted at the bridge. This
deviation is necessary to facilitate
scheduled bridge maintenance.
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16:49 Oct 17, 2007
Jkt 214001
1. The authority citation for part 946
continues to read as follows:
I
Authority: 30 U.S.C. 1201 et seq.
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:
I
§ 946.15 Approval of Virginia regulatory
program amendments.
*
*
*
*
*
*
*
*
4 VAC 25–130–842.15(d), Review of decision not to inspect or enforce.
This deviation is effective from
6 a.m. on October 13, 2007 through 5
p.m. on October 27, 2007.
ADDRESSES: Materials referred to in this
document are available for inspection or
copying at the First Coast Guard
District, Bridge Branch Office, 408
Atlantic Avenue, Boston, Massachusetts
02110, between 7 a.m. and 3 p.m.,
Monday through Friday, except Federal
holidays. The telephone number is (617)
223–8364. The First Coast Guard
District Bridge Branch Office maintains
the public docket for this temporary
deviation.
John
McDonald, Project Officer, First Coast
Guard District, at (617) 223–8364.
SUPPLEMENTARY INFORMATION: The old
Brightman Street bascule bridge, across
the Taunton River at mile 1.8, between
Fall River and Somerset, Massachusetts,
has a vertical clearance in the closed
position of 27 feet at mean high water
and 31 feet at mean low water. The
existing drawbridge operation
regulations are listed at 33 CFR 117.619.
The owner of the bridge,
Massachusetts Highway Department
(MHD), requested a temporary deviation
to facilitate scheduled bridge
maintenance and structural repairs to
the sidewalks at the old Brightman
Street bascule bridge.
FOR FURTHER INFORMATION CONTACT:
Frm 00020
PART 946—VIRGINIA
Citation/description
DATES:
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For the reasons set out in the
preamble, 30 CFR part 946 is amended
as set forth below:
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Under this temporary deviation, in
effect from 6 a.m. on October 13, 2007
through 5 p.m. on October 27, 2007, the
old Brightman Street bascule bridge
shall open on signal after at least a onehour advance notice is given by calling
the number posted at the bridge.
This work was scheduled during the
time of year when the one upstream
facility is closed and no deliveries are
scheduled. The recreational boat
marinas were contacted and have no
objection to the one-hour advance
notice.
An 18′ x 43′ construction work barge
may be located in the channel during
the prosecution of this bridge
maintenance. The work barge will move
upon request by calling the bridge
tender either on the land line (508) 672–
5111 or on VHF channels 13 and 16.
In accordance with 33 CFR 117.35(e),
the bridge must return to its regular
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
Should the bridge maintenance
authorized by this temporary deviation
be completed before the end of the
effective period published in this notice,
the Coast Guard will rescind the
remainder of this temporary deviation,
and the bridge shall be returned to its
normal operating schedule. Notice of
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]]>Agencies
[Federal Register Volume 72, Number 201 (Thursday, October 18, 2007)]
[Rules and Regulations]
[Pages 59009-59012]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-20559]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: ebandy@osmre.gov.
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.
0
For the reasons set out in the preamble, 30 CFR part 946 is amended as
set forth below:
PART 946--VIRGINIA
0
1. The authority citation for part 946 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
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.
* * * * *
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
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
