Virginia Regulatory Program, 59009-59012 [E7-20559]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[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]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-125-FOR]


Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving an amendment to the Virginia regulatory 
program under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). The program amendment revises the Virginia Coal 
Surface Mining Reclamation Regulations concerning review of a decision 
not to inspect or enforce. The amendment is intended to specify the 
time limit for filing a request for review of a decision and to 
identify with whom a request for review should be filed.

DATES: Effective Date: October 18, 2007.

FOR FURTHER INFORMATION CONTACT: Mr. Earl Bandy, Director, Knoxville 
Field Office; Telephone: (276) 523-4303. Internet: 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.

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For the reasons set out in the preamble, 30 CFR part 946 is amended as 
set forth below:

PART 946--VIRGINIA

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.

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   Original amendment submission date           Date of final  publication             Citation/description
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                                                  * * * * * * *
March 12, 2007..........................  October 18, 2007.....................  4 VAC 25-130-842.15(d), Review
                                                                                  of decision not to inspect or
                                                                                  enforce.
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[FR Doc. E7-20559 Filed 10-17-07; 8:45 am]
BILLING CODE 4310-05-P