Virginia Regulatory Program, 31486-31493 [2012-12933]
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Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations
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Michael Kaszycki,
Acting Manager, Transport Airplane
Directorate, Aircraft Certification Service.
[FR Doc. 2012–13034 Filed 5–25–12; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 946
[VA–126–FOR; OSM–2008–0012]
Virginia Regulatory Program
Office of Surface Mining
Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of
amendment.
AGENCY:
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 amendment
revises the Virginia Coal Surface Mining
Reclamation Regulations pertaining to
ownership and control, valid existing
rights, self-bonding, and availability of
records. Virginia intends to revise its
program to be consistent with the
corresponding Federal regulations and
SMCRA and is responding, in part, to a
30 CFR part 732 letter.
DATES: Effective May 29, 2012.
FOR FURTHER INFORMATION CONTACT: Mr.
Earl Bandy, Director, Knoxville Field
Office, Telephone: (865) 545–4103.
Internet: ebandy@osmre.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background on the Virginia Program
II. Submission of the Amendment
III. OSM’s Findings
IV. Summary and Disposition of Comments
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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.’’ 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. Submission of the Amendment
By letter dated June 11, 2008, the
Virginia Department of Mines, Minerals,
and Energy (Virginia) sent us an
informal proposed amendment to its
program for a pre-submission review
(VA–126–INF). We reviewed the presubmission and responded to Virginia,
with comments, via electronic mail on
July 2, 2008. By letter dated July 17,
2008, Virginia formally submitted the
proposed amendments to its program
(Administrative Record No. VA–1089).
We announced receipt of the
proposed amendment in the August 29,
2008, Federal Register (73 FR 50915). 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
September 29, 2008. No comments were
received.
OSM’s review of the July 17, 2008,
submittal identified several issues that
we presented to Virginia. The first
discussion occurred by telephone on
September 4, 2008. As a result of that
discussion, Virginia submitted on the
same date, via electronic mail,
Memorandum #13–86 which specifies
application processing time limits for
new permits and revision applications
(Administrative Record No. VA–1093).
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The complete text of the Memorandum
can be found at https://
www.Virginia.virginia.gov/DMLR/docs/
operatormemos. A subsequent meeting
was held on October 16, 2008
(Administrative Record No. VA–1099).
In an electronic mail message dated
October 29, 2008 (Administrative
Record No. VA–2000), Virginia
provided its position in response to
OSM’s comments and agreed to
expeditiously submit additional
changes. On November 3, 2008, Virginia
responded by submitting regulation
changes via electronic mail
(Administrative Record No. VA–2001).
OSM provided additional comments on
the regulation changes on November 13,
2008 (Administrative Record No. VA–
2002), and Virginia responded to these
comments on November 20, 2008, by
electronic mail (Administrative Record
No. VA–2003). We announced receipt of
the additional revisions in the April 17,
2009, Federal Register (74 FR 17806).
The public comment period ended on
May 4, 2009. Public comments were
filed jointly by the Southern
Appalachian Mountain Stewards
(SAMS) and the Sierra Club. These
comments have been addressed at the
section titled SUMMARY AND
DISPOSITION OF COMMENTS.
On March 25, 2011, OSM sent a letter
(Administrative Record No. VA–2007)
to Virginia informing them that their
provisions at 4 VAC25–130–
761.16(d)(1)(vii) and 4VAC25–130–
761.16(d)(3), were inconsistent with the
Federal counterparts. The language
proposed by Virginia would have
required that an applicant provide
reasons for requesting an initial 30 day
extension to the comment period.
The federal counterpart provisions, at
30 CFR 761.16(d)(1)(vii) and
761.16(d)(3), are clear that the initial 30day extension will be granted, without
cause, upon request.
31487
Subsequent to several extensions
(Administrative Record numbers VA–
2008, VA–2009, VA–2010), Virginia
submitted, by electronic mail, on June
13, 2011 (Administrative Record No.
VA–2012), revised language that is
substantially identical to the
corresponding federal counterparts.
III. OSM’s Findings
The following are the findings we
made concerning the amendment under
SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17. We are
approving the amendment. Any
revisions that we do not specifically
discuss below concern non-substantive
wording or editorial changes.
a. Minor Revisions to Virginia’s Rules
Virginia proposed minor wording
changes to the following previouslyapproved rules:
State regulation
Federal regulation
Topic
4VAC25–130–773.13 .........................................
4VAC25–130–773.20(a) .....................................
30 CFR 773.6 ..................................................
30 CFR 773.21(a) ............................................
4VAC25–130–774.12(e) .....................................
4VAC25–130–774.17(a) .....................................
30 CFR 774.11 ................................................
30 CFR 774.17 ................................................
4VAC25–130–778.13(c), (d), (k), (m) .................
4 VAC25–130–801.13(a)(3), (a)(7), (b) ..............
30 CFR 778.11 ................................................
None .................................................................
Public Participation.
Improvidently Issued Permits, General Procedures.
Post-Permit Issuance Requirements.
Transfer, Assignment, or Sale of Permit
Rights.
Identification of Interests.
Self-bonding.
Because these changes are minor, we
find that they will not make Virginia’s
regulations less effective than the
corresponding Federal regulations and
can be approved.
b. Revisions to Virginia’s Rules That are
Substantively Identical to, and
Therefore No Less Effective Than, the
Corresponding Provisions of the Federal
Regulations.
Federal regulation
Topic
4VAC25–130–700.5 ...........................................
30 CFR 701.5 ..................................................
4VAC25–130–700.5. ..........................................
4VAC25–130–700.5 ...........................................
30 CFR 800.5 ..................................................
30 CFR 701.5 ..................................................
4VAC25–130–700.5 ...........................................
4VAC25–130–761.11 .........................................
4VAC25–130–761.13 .........................................
4VAC25–130–761.16(a),
(b)(1)–(4),
(c),
(d)(1)(i)–(viii) (d)(2),(3), (e), (f), and (g).
4VAC25–130–772.12(b)(14) and (d)(2)(iv) ........
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State regulation
30
30
30
30
4VAC25–130–773.15(b)(1) ................................
4VAC25–130–773.20(c)(3) .................................
30 CFR 773.7 ..................................................
30 CFR 773.21(c) ............................................
4VAC25–130–774.12(a), (d), (e) ........................
30 CFR 774.11(a), (b) .....................................
Definition of Applicant Violator System or
AVS; Control or Controller; Knowing or
knowingly; Own, Owner, or Ownership.
Definition of Self-Bond.
Definitions of Transfer, Assignment, or Sale of
Permit Rights; Violation; Violation, Failure,
or Refusal; Violation Notice; Willful or Willfully.
Definition of Valid Existing Rights.
Areas Where Mining is Prohibited or Limited.
Exception for Existing Operations.
Submission and Processing of Requests for
Valid Existing Rights Determinations.
Permit Requirements for Exploration Removing More Than 250 Tons of Coal or Occurring on Lands Designated as Unsuitable for
Surface Coal Mining Operations.
Review of Permit Applications.
Improvidently Issued Permits: General Procedures.
Post-Permit Issuance Requirements
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CFR
CFR
CFR
CFR
761.5 ..................................................
761.11 ................................................
761.12(a) ............................................
761.16 ................................................
30 CFR 772.12(b)(14) and (d)(2)(iv) ...............
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Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations
State regulation
Federal regulation
Topic
4VAC25–130–774.17(a) .....................................
30 CFR 774.17(a) ............................................
4VAC25–130–778.13(a)–(e) ..............................
4VAC25–130–778.14(c) .....................................
30 CFR 778.11(a)–(d) ......................................
30 CFR 778.14(c) ............................................
Transfer, Assignment, or Sale of Permit
Rights.
Identification of Interests.
Violation Information.
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Because the proposed rules contain
language that is substantively identical
to the corresponding Federal
regulations, we find that they are no less
effective than the corresponding Federal
regulations and can be approved.
c. Revisions to Virginia’s Rules That Are
Not the Same as the Corresponding
Provisions of the Federal Regulations
1. At 4VAC25–130–773.15—Review
of Permit Applications:
(a) At subsection (a)(1) Virginia
proposes to require that the Division
review the application for a permit,
revision, or renewal; written comments
and objections; information from AVS;
and records of any informal conference
or hearing held on the application—and
issue a written decision, within a
reasonable time, either granting,
requiring modification of, or denying
the application. If an informal
conference is held, the decision will be
made within 60 days of the close of the
conference.
The Federal regulations at 30 CFR
773.7(a) require that the regulatory
authority must specify a reasonable time
(set by the regulatory authority) for
decisions in those cases where no
informal conference has been requested.
Virginia’s Memorandum to Operators
#13–86 (Administrative Record No. VA–
1093) provides time limits for permit
and revision applications, but does not
specifically address renewal
applications.
By electronic mail on November 20,
2008 (Administrative Record No. VA–
2003), Virginia clarified its permit
renewal review process. It stated in part,
‘‘A permit renewal is different than a
new permit or revision application, in
that there is a set date in which it must
be submitted to the Division * * * at
least 120 days before the existing
permit’s expiration date. Failure to do
so would subject the operation to
cessation of mining operations on the
expiration date if a renewal application
was not timely submitted and the
permittee was not acting diligently and
in good faith with regard to the permit
application. For timely submitted
applications, the Division’s decision on
the renewal application is, for the most
part, rendered by the existing permit’s
expiration date.’’
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In effect, Virginia must render a
decision on a permit renewal
application by the expiration date of the
existing permit. Virginia requires that a
renewal application be submitted 120
days prior to the expiration of the
existing permit to accommodate the
required filing and public notice
procedures. Therefore, the time period
for decisions is the aforementioned 120day application timeframe. For these
reasons, we find that the proposed
revisions are no less effective than the
corresponding Federal regulations at 30
CFR 773.7(a) and can be approved.
(b) At subsection (b)(4)(i)(C), Virginia
proposes to revise its violation review
procedures to delete the remining
exclusion for those permits, or renewals,
issued before September, 2004. We find
that these revisions are no less stringent
than the provisions of section 510(e) of
SMCRA, as modified by the Tax Relief
and Health Care Act of 2006, which
address permit approval or denial and
therefore can be approved.
2. At 4VAC25–130–773.21—
Improvidently Issued Permits;
Rescission, Virginia proposes to make
the requirements of this section
applicable to permit suspensions, as
well as permit rescissions. Virginia is
also requiring that the notice of permit
suspension or rescission be posted at its
offices and on its internet home page. It
also provides the procedures for the
challenge and review of a person’s
ownership and control listing.
Additionally, if a permittee files for an
administrative review of the notice or
decision pertaining to ownership and
control, Virginia is requiring that the
notice of public hearing be posted at the
division office located nearest to the
permit.
We find that the proposed revisions
are no less effective than the Federal
regulations at 30 CFR 773.23(a)–(d),
which address the administrative
review and notification requirements for
the suspension or rescission of
improvidently issued permits, and can
be approved.
3. At 4VAC25–130–840.14(c)(2)—
Availability of Records, Virginia
proposes to post a notice that specifies
how and where it will maintain records
pertaining to records, reports,
inspection materials, permit
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applications, and other information for
public inspection and copying. The
notice will be sent to Circuit Court
Clerks of coal-producing counties and
will be posted at all Virginia Division of
Mined Land Reclamation offices.
Virginia will maintain the records at its
principal office and the information will
also be made available, upon request, at
its field office as well as any Federal,
State, or local government office(s)
located in the county where the mining
is, or may be proposed to occur.
Virginia is complying with the
Federal regulations at 30 CFR 840.14(b)
and (c) that require that all pertinent
permit information be made available
for public inspection by either
maintaining said information at Federal,
State, or local government offices in the
county where mining is occurring or
proposed to occur, or mailing or
electronically mailing said information
to a requestor based on a description
maintained at the locations named
above. We find that the proposed
revisions are no less effective than the
Federal regulations at 30 CFR 840.14(b)
and (c) and therefore can be approved.
d. Revisions to Virginia’s Rules With No
Corresponding Federal Regulations
1. At 4 VAC 25–130–700.5—
Definitions, Virginia proposes to delete
the term and definition of Cognovit
Note. It is replaced by Indemnity
Agreement in 4 VAC25–130–801.13.
There is no Federal counterpart to either
the definition of Cognovit Note or
Indemnity Agreement. However, the
term Indemnity Agreement is used in
the definitions of Surety Bond,
Collateral Bond, and Self-Bond, in 30
CFR 800.5, whereas the term Cognovit
Note does not appear in the Federal
regulations. Moreover, the term
Indemnity Agreement is defined in a
manner that is consistent with its usage
in the aforementioned Federal
regulatory definitions. Therefore, we
find that these changes are not
inconsistent with the requirements of
SMCRA and the Federal regulations and
can be approved.
2. At 4 VAC25–130–773.15(a)(3)–(4)—
Review of Permit Applications, Virginia
proposes to require its review of
information regarding the permit
applicant’s and/or operator’s permit
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histories, business structure, and
ownership and control relationships.
Virginia may also conduct other
ownership and control reviews, as
necessary, in those cases where the
applicant has no previous mining
history. While there is no direct Federal
counterpart to the proposed revisions,
we find that the revisions are consistent
with the general Federal provisions
pertaining to permit application review
at 30 CFR 773.7 and therefore can be
approved.
3. At 4 VAC25–130–774.12(b), (c)—
Post-Permit Issuance Requirements,
Virginia proposes to specify the
permittee’s required actions in the
event: (1) Said permittee fails to comply
with the remedial measures of an
enforcement action, or (2) the
identification of interests information in
the permit application changes. While
there is no direct Federal counterpart to
the proposed revisions, we find that the
revisions are consistent with the general
Federal provisions pertaining to postpermit issuance at 30 CFR 774.11 and
therefore can be approved.
4. At 4 VAC25–130–778.13(e), (f),
(g)—Identification of Interests:
(a) At subsection (e), Virginia
proposes to require that a permit
application include a list of all names
under which the applicants et al operate
or previously operated a surface coal
mining operation within a 5-year period
preceding the submission date of the
application.
(b) At subsection (f), Virginia
proposes to require that a permit
application include a list of any pending
permit applications with identifying
information for the applicant and
operator (if different from the
applicant).
(c) At subsection (g), Virginia
proposes to require that a permit
application include certain identifying
information for the permittee and
operator. This includes name, address,
tax identification numbers, permits
numbers, and ownership relationship.
While there are no direct Federal
counterparts to the proposed revisions,
we find that the revisions are consistent
with the general Federal provisions
pertaining to permit application review
at 30 CFR 778.11 and therefore can be
approved.
5. At 4 VAC 25–130–800.52—Bond
Forfeiture Reinstatement Procedures:
(a) Subsection (a), Virginia proposes
to delete the reference to the Board of
Conservation and Economic
Development, as the entity no longer
exists.
(b) Subsection (a)(5), Virginia
proposes to replace the term civil
penalty with reinstatement fee. This
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revision will differentiate the fee from
the civil penalty that may be assessed
under 4 VAC25–130–845. Virginia also
proposes to allow the use of the
reinstatement fees for other
investigations, research, or abatement
actions relating to lands and waters
affected by coal surface mining
activities.
There are no Federal counterpart
regulations. We find that the revisions
are not inconsistent with the
requirements of SMCRA and the Federal
regulations and can be approved.
6. At 4 VAC 25–130–801.12(d)—
Entrance Fee and Bond, Virginia
proposes to require the annual
certification of the financial solvency of
a permittee during the term of the
permit. There is no Federal counterpart
regulation. We find that the revision is
not inconsistent with the requirements
of SMCRA and the Federal regulations
and can be approved.
7. At 4 VAC 25–130–801.13—SelfBonding:
(a) Subsection (a), Virginia proposes
to allow self-bonds from applicants of
proposed surface coal mining operations
in the form of an indemnity agreement.
Virginia also proposes to change
‘‘paragraph’’ to ‘‘subdivision’’ in
subsections (a)(3), (a)(7), and (b).
(b) Subsection (a)(1)(iv), Virginia
proposes to require that an applicant of
a proposed surface coal mining
operation provide evidence indicating a
history of satisfactory continuous
operation.
(c) Subsection (a)(3), Virginia
proposes to require that an applicant of
a proposed surface mining operation or
associated facility submit evidence
substantiating the applicant’s financial
solvency, with appropriate financial
documentation.
(d) Virginia proposes to replace
cognovits note with indemnity
agreement (agreement) throughout the
section.
(e) Virginia proposes to delete existing
subsection (b) pertaining to self-bonding
provisions for surface coal mining
operations. The surface coal mining
permit requirements for self-bonding are
addressed in subsection (a).
While there are no direct Federal
counterparts to the proposed revisions,
we find that the revisions are consistent
with the general Federal provisions
pertaining to self-bonding at 30 CFR
800.23 and therefore can be approved.
IV. Summary and Disposition of
Comments
Public Comments
We asked for public comments on the
amendment (Administrative Record No.
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31489
VA- 1090). The Virginia Department of
Historic Resources commented that no
historic properties will be affected by
the provisions of the proposed
amendment (Administrative Record
No.VA–1095). We received several
comments filed jointly by the Southern
Appalachian Mountain Stewards
(SAMS) and the Sierra Club
(Administrative Record No.VA–2006).
Responses to those comments follow.
The joint commenters are referred to as
‘‘SAMS/Sierra Club’’ or ‘‘the
commenters.’’ SAMS/Sierra Club
contend that OSM must disapprove the
portion of the amendment that,
according to them, ‘‘would effectively
require any person who disputes the
property rights assertion at the root of a
[valid existing rights] VER claim either
to commence litigation against the
permit applicant prior to the expiration
of the comment period on the VER
request or else allow [the Virginia
Department of Mines, Minerals &
Energy] DMME to ‘evaluate the merits of
the information in the record’ with
respect to disputed property rights and
then to ‘determine whether the [permit
applicant] has demonstrated that the
requisite property rights exist.’ ’’ The
Virginia proposed provision SAMS/
Sierra Club refer to is at 4 VAC 25–130–
130–761.16(e)(3). They argue that this
provision is ‘‘fundamentally flawed in
at least two respects.’’ SAMS/Sierra
Club Comment #1: First, SAMS/Sierra
Club state that the amendment would
unlawfully shift the burden of
commencing property rights dispute
litigation to persons who oppose
approval of the permit application,
rather than placing the burden on the
permit applicant, which, according to
SAMS/Sierra Club, is mandated by
SMCRA at 30 U.S.C. 1260(a). This
statutory provision states that ‘‘[t]he
applicant for a permit, or revision of a
permit, shall have the burden of
establishing that his application is in
compliance with all the requirements of
the applicable State or Federal
program.’’ Thus, according to the
commenters, a permit applicant must
seek judicial resolution of a property
rights dispute in order to satisfy the
property rights component of a VER
determination; SMCRA does not, they
contend, allow a State regulatory
authority to undertake such an
adjudication. For these reasons, SAMS/
Sierra Club insist that OSM is required,
pursuant to 30 CFR 732.17(h)(10), to
disapprove 4 VAC 25–130–130–
761.16(e)(3)(i) and clarify that ‘‘federal
law does not permit DMME to adopt any
regulation that would relieve permit
applicants of the obligation to obtain a
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valid adjudication of any property rights
dispute pertinent to the ‘right to mine’
demonstration that each permit
applicant must make, including any
claim to VER that may be a part of the
applicant’s ‘right to mine’
demonstration. Permit applicants must
commence and complete such
proceedings in order to submit a
complete application; state regulatory
authorities may not shift that burden to
persons who dispute the applicant’s
right to mine, including any propertyrights based claim to VER that an
applicant may make.’’
OSM’s Response: We disagree with
SAMS/Sierra Club. The Virginia
provision is identical in substance to the
counterpart Federal regulation at 30
CFR 761.16(e)(3)(i), which states as
follows:
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The agency must issue a determination that
you have not demonstrated valid existing
rights if your property rights claims are the
subject of pending litigation in a court or
administrative body with jurisdiction over
the property rights in question. The agency
will make this determination without
prejudice, meaning that you may refile the
request once the property rights dispute is
finally adjudicated. This paragraph applies
only to situations in which legal action has
been initiated as of the closing date of the
comment period under paragraph (d)(1) or
(d)(3) of this section.
The VER regulations published by
OSM on December 17, 1999 (64 FR
70766–70838), which include the
provision quoted above, were
challenged by the National Mining
Association and upheld by the United
States Court of Appeals for the District
of Columbia Circuit in Nat’l Mining
Ass’n v. Kempthorne, 512 F.3d 702 (D.
C. Cir. 2008), cert. denied 172 L. Ed. 2d
639 (U.S. Dec. 1, 2008). Thus, as noted
in Finding III(b) above, the Virginia
provision at 4 VAC 25–130–130–
761.16(e)(3)(i) is substantively identical
to, and no less effective than, its Federal
counterpart, and is therefore approved.
SAMS/Sierra Club Comment #2:
Second, the commenters assert that the
Virginia regulation at 4 VAC 25–130–
130–761.16(e)(3)(ii), which would
permit the DMME ‘‘to evaluate the
merits of the information in the record
and determine whether the person has
demonstrated that the requisite property
rights exist under subdivision (a), (c)(1),
or (c)(2) of the valid existing rights
definition * * *, as appropriate,’’ is
‘‘flatly inconsistent with SMCRA’s
dictate that ‘nothing in this Act shall be
construed to authorize the regulatory
authority to adjudicate property rights
disputes.’’ 30 U.S.C. 1260(b)(6). Instead,
SAMS/Sierra Club argues, SMCRA
requires the regulatory authority to
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‘‘withhold approval of the pertinent
permit application unless and until the
permit applicant obtains a favorable
adjudication of that dispute in
accordance with pertinent state law[.]’’
For this reason, they contend, the
DMME may not ‘‘evaluate the merits of
information in the record’’ to
‘‘determine whether the [permit
applicant] has demonstrated that
requisite property rights exist, as
provided for in paragraph (e)(3)(ii),
because to do so would ‘‘constitute an
administrative adjudication of property
rights that SMCRA flatly prohibits a
regulatory authority from undertaking.’’
Therefore, the commenters conclude,
OSM must disapprove 4 VAC 25–130–
130–761.16(e)(3)(ii), and ‘‘make clear
that federal law does not permit DMME
to adopt any regulation that would
empower it to adjudicate any property
rights dispute pertinent to any of its
activities under the approved Virginia
state program.’’
OSM’s Response: We disagree with
SAMS/Sierra Club, based precisely on
the rationale set forth in our response to
SAMS/Sierra Club Comment #1, above.
The Virginia provision is substantively
identical to, and therefore no less
effective than, its Federal counterpart
addressing valid existing rights claims
at 30 CFR 761.16(e)(3)(ii), which states:
If the record indicates disagreement as to
the accuracy of your property rights claims,
but this disagreement is not the subject of
pending litigation in a court or
administrative agency of competent
jurisdiction, the agency must evaluate the
merits of the information in the record and
determine whether you have demonstrated
that the requisite property rights exist under
paragraph (a), (c)(1), or (c)(2) of the definition
of valid existing rights in § 761.5, as
appropriate. The agency must then proceed
with the decision process under paragraph
(e)(2) of this section.
This Federal provision was part of the
same VER challenge that resulted in the
upholding of all of the Federal VER
regulations promulgated by OSM on
December 17, 1999 (64 FR 70766–
70838). Nat’l Mining Ass’n v.
Kempthorne, supra. The Federal
regulation provides, if there is no
pending litigation in a court or
administrative agency of competent
jurisdiction on the question of property
rights, the regulatory agency must
evaluate the merits of the information
submitted and determine if the
applicable regulatory provisions for
demonstrating requisite property rights
under the definition of valid existing
rights have been satisfied. As indicated,
the Virginia provision is substantively
identical to the Federal provision. For
these reasons, we approve the Virginia
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regulation at 4 VAC 25 130 130
761.16(e)(3)(ii).
SAMS/Sierra Club Comment #3: The
commenters also objected to the
comment period provided for by 4 VAC
25–130–761.16(d)(3). The commenters
contend that the 30 day comment period
for a VER determination, which may be
expanded to 60 days at the DMME’s
discretion, ‘‘establishes an unreasonably
brief period within which coalfield
citizens who wish to challenge a VER
claim must commence litigation to
resolve an underlying property rights
dispute,’’ as set forth in 4 VAC 25–130–
130–761.16(e)(3)(ii). The comment
period would, according to SAMS/
Sierra Club, ‘‘have the effect of limiting
citizen access to necessary legal
services, or even foreclosing such access
altogether, due to the likely refusal of
attorneys to accept matters on such an
emergency footing [.]’’ Thus, according
to the commenters, even if it were
lawful to require citizens to commence
property rights dispute litigation (which
the commenters say is certainly not the
case), ‘‘OSM’s duty to foster
participation in the Virginia program
would require * * * [it] to withhold
approval of DMME’s proposed permit
amendment unless and until DMME
provides at least a 90-day public
comment period * * *, together with
provision for mandatory extension
* * * for an additional 30 days if an
attorney representing a person who
intends to file a property rights dispute
establishes a good faith need for
additional time to prepare and file
litigation.’’
OSM’s Response: SAMS/Sierra Club
provides no rationale for requiring
DMME to establish a minimum
comment period of 90 days for a VER
determination, with a mandatory 30 day
extension based upon a good faith need
for more time by an attorney
representing the would-be plaintiff in a
property rights dispute. Indeed, the
Federal regulation at 30 CFR
761.16(d)(3), which is now settled law,
establishes a 30 day period, with an
additional 30 days upon request,
followed by the possibility of further
extensions at the discretion of the
regulatory authority, based upon a
showing of good cause by the requestor;
it does not, however, mandate a
comment period longer than 60 days, as
requested by SAMS/Sierra Club.
Therefore, we disagree with the
commenters that Virginia must provide
a longer comment period than is
allowed under the Federal regulatory
counterpart.
SAMS/Sierra Club Comment #4:
Finally, the commenters request that, if
it has not done so, OSM must submit
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Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations
the proposed amendment to Virginia’s
State Historic Preservation Officer
(SHPO) and to the Advisory Council on
Historic Preservation (ACHP) for
comment, pursuant to 30 CFR
732.17(h)(4).
OSM’s Response: We sent letters to
both the Virginia SHPO and the ACHP
on August 12, 2008 (Administrative
Record No.VA–1090). By letter dated
September 9, 2008, the SHPO notified
us that no impacts to historic properties
were anticipated if we were to approve
this amendment (Administrative Record
No.VA–1095).
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and
section 503(b) of SMCRA, on August 12,
2008, we requested comments on the
amendments from various Federal
agencies with an actual or potential
interest in the Virginia program
(Administrative Record No. VA–1090).
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 Services
responded and stated that they did not
object to the amendment and deemed
the changes appropriate.
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Environmental Protection Agency (EPA)
Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i), we
requested comments on the amendment
from the EPA (Administrative Record
No. VA–1090). No comments were
received.
Under 30 CFR 732.17(h)(11)(ii), we
are required to get a written concurrence
from EPA for those provisions of the
program amendment that relate to air or
water quality standards issued under
the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act
(42 U.S.C. 7401 et seq.). None of the
revisions that 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.
V. OSM’s Decision
Based on the above findings, we are
approving the amendment sent to us by
Virginia on July 17, 2008. To implement
this decision, we are amending the
Federal regulations at 30 CFR part 946,
which codify decisions concerning the
Virginia program. Pursuant to 5 U.S.C.
553(d)(3), an agency may, upon a
showing of good cause, waive the 30
day delay of the effective date of a
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14:08 May 25, 2012
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substantive rule following publication
in the Federal Register, thereby making
the final rule effective immediately.
We find that good cause exists under
5 U.S.C. 553(d)(3) to make this final rule
effective immediately. Because 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.
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
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31491
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,
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)).
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Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations
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 the provisions in this rule
that are based on 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 an analysis
prepared for the counterpart Federal
regulations and the certification made
that such regulations would not have a
significant economic impact upon a
substantial number of small entities.
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
Original amendment submission
date
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*
*
July 17, 2008 .................................
VerDate Mar<15>2010
14:08 May 25, 2012
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
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
Date of final
publication
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: July 21, 2011.
Thomas D. Shope,
Regional Director, Appalachian Region.
Editor’s note: This document was received
by the Office of the Federal Register on May
23, 2012.
For the reasons set out in the
preamble, 30 CFR part 946 is amended
as set forth below:
PART 946—VIRGINIA
1. The authority citation for part 946
continues to read as follows:
■
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:
■
§ 946.15 Approval of Virginia regulatory
program amendments.
*
*
*
*
*
Citation/description
*
*
*
*
*
May 29, 2012 ................................. 4VAC 25–130–700.5, 4VAC25–130–761.11, 4VAC25–130–761.13,
4VAC25–130–761.16, 4VAC25–130–772.12, 4VAC 25–130–773.13,
4VAC 25–130–773.15, 4VAC 25–130–773.20(c)(3), 4VAC 25–130–
773.21, 4VAC 25–130–774.12, 4VAC 25–130–774.17(a), 4VAC 25–
130–778.13, 4VAC 25–130–778.14(c), 4VAC 25–130–800.52(a)
and (a)(5), 4VAC 25–130–801.12(c) and (d), 4VAC 25–130–801.13,
4VAC 25–130–840.14(c)(2), 4VAC 25–130–846.2.
Jkt 226001
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Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations
[FR Doc. 2012–12933 Filed 5–25–12; 8:45 am]
BILLING CODE 4310–05–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Parts 100 and 165
[Docket No. USCG–2012–0373]
RIN 1625–AA08
RIN 1625–AA00
Eighth Coast Guard District Annual
Marine Events and Safety Zones; Billy
Bowlegs Pirate Festival; Santa Rosa
Sound; Ft. Walton Beach, FL
Coast Guard, DHS.
ACTION: Notice of enforcement of
regulation.
AGENCY:
The Coast Guard will enforce
a Special Local Regulation and a Safety
Zone for the Billy Bowlegs Pirate
Festival in the Santa Rosa Sound, Ft.
Walton Beach, FL on June 1 and June 2,
2012. This action is necessary to
safeguard participants and spectators,
including all crews, vessels, and
persons on navigable waters during the
Billy Bowlegs Pirate Festival. During the
enforcement period, entry into,
transiting or anchoring in the regulated
area is prohibited to all vessels not
registered with the sponsor as
participants or official patrol vessels,
unless specifically authorized by the
Captain of the Port (COTP) Mobile or a
designated representative.
DATES: The regulations in 33 CFR
100.801, Table 1, Table No. 99 and
Sector Mobile No. 12; and 33 CFR
165.801, Table 1, Table No. 144 and
Sector Mobile No. 3 will be enforced on
June 1 and June 2, 2012.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this notice of
enforcement, call or email LT Lenell J.
Carson, Coast Guard Sector Mobile,
Waterways Division; telephone 251–
441–5940 or email
Lenell.J.Carson@uscg.mil.
SUMMARY:
On June 1
and June 2, 2012, the Coast Guard will
enforce the Special Local Regulation in
33 CFR 100.801, Table 1, Table No. 99
and Sector Mobile No. 12, and the
Safety Zone in 33 CFR 165.801, Table 1,
Table No. 144 and Sector Mobile No. 3
for the annual Billy Bowlegs Pirate
Festival.
Under the provisions of 33 CFR
100.801, all persons and vessels not
registered with the sponsor as
participants or official patrol vessels are
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SUPPLEMENTARY INFORMATION:
VerDate Mar<15>2010
14:08 May 25, 2012
Jkt 226001
considered spectators. The ‘‘official
patrol vessels’’ consist of any Coast
Guard, state or local law enforcement
and sponsor provided vessels assigned
or approved by the Commander, Eighth
Coast Guard District, to patrol the event.
Spectator vessels desiring to transit the
regulated area listed in § 100.801 Table
1, Table No. 99 and Sector Mobile No.
12 may do so only with prior approval
of the Patrol Commander and when so
directed by that officer and will be
operated at a no wake speed in a
manner which will not endanger
participants in the event or any other
craft. No spectator shall anchor, block,
loiter, or impede the through transit of
participants or official patrol vessels in
the regulated area during the effective
dates and times, unless cleared for entry
by or through an official patrol vessel.
The Patrol Commander may forbid and
control the movement of all vessels in
the regulated area. When hailed or
signaled by an official patrol vessel, a
vessel shall come to an immediate stop
and comply with the directions given.
Failure to do so may result in expulsion
from the area, citation for failure to
comply, or both. Any spectator vessel
may anchor outside the regulated area,
but may not anchor in, block, or loiter
in a navigable channel. The Patrol
Commander may terminate the event or
the operation of any vessel at any time
it is deemed necessary for the protection
of life or property. The Patrol
Commander will terminate enforcement
of the special regulations at the
conclusion of the event.
Under the provisions of 33 CFR
165.801, entry into the safety zone listed
in Table 1, Table No. 144 and Sector
Mobile No. 3 is prohibited unless
authorized by the Captain of the Port or
a designated representative. Persons or
vessels desiring to enter into or passage
through the safety zone must request
permission from the Captain of the Port
or a designated representative. If
permission is granted, all persons and
vessels shall comply with the
instructions of the Captain of the Port or
designated representative.
This notice is issued under authority
of 5 U.S.C. 552(a). In addition to this
notice in the Federal Register, the Coast
Guard will provide the maritime
community with advance notification of
this enforcement period via Local
Notice to Mariners and Marine
Information Broadcasts.
If the Captain of the Port Mobile or
Patrol Commander determines that the
regulated area need not be enforced for
the full duration stated in this notice of
enforcement, he or she may use a
Broadcast Notice to Mariners to grant
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31493
general permission to enter the
regulated area.
Dated: May 7, 2012.
K.D. Ivery,
Captain, U.S. Coast Guard, Captain of the
Port Mobile, Acting.
[FR Doc. 2012–12951 Filed 5–25–12; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG–2012–0384]
RIN 1625–AA00
Safety Zones; Fourth of July Fireworks
Displays Within the Captain of the Port
Charleston Zone, SC
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing five temporary safety zones
during Fourth of July Fireworks
Displays on certain navigable waterways
in Hilton Head Island, Mount Pleasant,
Murrells Inlet, North Charleston, and
North Myrtle Beach, South Carolina.
These safety zones are necessary to
protect the public from the hazards
associated with launching fireworks
over navigable waters of the United
States. Persons and vessels are
prohibited from entering, transiting
through, anchoring in, or remaining
within any of the safety zones unless
authorized by the Captain of the Port
Charleston or a designated
representative.
SUMMARY:
This rule is effective from 8:30
p.m. until 10:30 p.m. on July 4, 2012.
ADDRESSES: Documents indicated in this
preamble as being available in the
docket are part of docket USCG–2012–
0384 and are available online by going
to https://www.regulations.gov, inserting
USCG–2012–0384 in the ‘‘Keyword’’
box, and then clicking ‘‘Search.’’ They
are also available for inspection or
copying at the Docket Management
Facility (M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this temporary
final rule, call or email Ensign John R.
Santorum, Sector Charleston Office of
Waterways Management, Coast Guard;
telephone (843) 740–3184, email
DATES:
E:\FR\FM\29MYR1.SGM
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]]>Agencies
[Federal Register Volume 77, Number 103 (Tuesday, May 29, 2012)]
[Rules and Regulations]
[Pages 31486-31493]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12933]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 946
[VA-126-FOR; OSM-2008-0012]
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 amendment revises the Virginia Coal Surface
Mining Reclamation Regulations pertaining to ownership and control,
valid existing rights, self-bonding, and availability of records.
Virginia intends to revise its program to be consistent with the
corresponding Federal regulations and SMCRA and is responding, in part,
to a 30 CFR part 732 letter.
DATES: Effective May 29, 2012.
FOR FURTHER INFORMATION CONTACT: Mr. Earl Bandy, Director, Knoxville
Field Office, Telephone: (865) 545-4103. 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.'' 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. Submission of the Amendment
By letter dated June 11, 2008, the Virginia Department of Mines,
Minerals, and Energy (Virginia) sent us an informal proposed amendment
to its program for a pre-submission review (VA-126-INF). We reviewed
the pre-submission and responded to Virginia, with comments, via
electronic mail on July 2, 2008. By letter dated July 17, 2008,
Virginia formally submitted the proposed amendments to its program
(Administrative Record No. VA-1089).
We announced receipt of the proposed amendment in the August 29,
2008, Federal Register (73 FR 50915). 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 September 29, 2008. No comments were received.
OSM's review of the July 17, 2008, submittal identified several
issues that we presented to Virginia. The first discussion occurred by
telephone on September 4, 2008. As a result of that discussion,
Virginia submitted on the same date, via electronic mail, Memorandum
13-86 which specifies application processing time limits for
new permits and revision applications (Administrative Record No. VA-
1093).
[[Page 31487]]
The complete text of the Memorandum can be found at https://www.Virginia.virginia.gov/DMLR/docs/operatormemos. A subsequent meeting
was held on October 16, 2008 (Administrative Record No. VA-1099). In an
electronic mail message dated October 29, 2008 (Administrative Record
No. VA-2000), Virginia provided its position in response to OSM's
comments and agreed to expeditiously submit additional changes. On
November 3, 2008, Virginia responded by submitting regulation changes
via electronic mail (Administrative Record No. VA-2001). OSM provided
additional comments on the regulation changes on November 13, 2008
(Administrative Record No. VA-2002), and Virginia responded to these
comments on November 20, 2008, by electronic mail (Administrative
Record No. VA-2003). We announced receipt of the additional revisions
in the April 17, 2009, Federal Register (74 FR 17806). The public
comment period ended on May 4, 2009. Public comments were filed jointly
by the Southern Appalachian Mountain Stewards (SAMS) and the Sierra
Club. These comments have been addressed at the section titled SUMMARY
AND DISPOSITION OF COMMENTS.
On March 25, 2011, OSM sent a letter (Administrative Record No. VA-
2007) to Virginia informing them that their provisions at 4 VAC25-130-
761.16(d)(1)(vii) and 4VAC25-130-761.16(d)(3), were inconsistent with
the Federal counterparts. The language proposed by Virginia would have
required that an applicant provide reasons for requesting an initial 30
day extension to the comment period.
The federal counterpart provisions, at 30 CFR 761.16(d)(1)(vii) and
761.16(d)(3), are clear that the initial 30-day extension will be
granted, without cause, upon request.
Subsequent to several extensions (Administrative Record numbers VA-
2008, VA-2009, VA-2010), Virginia submitted, by electronic mail, on
June 13, 2011 (Administrative Record No. VA-2012), revised language
that is substantially identical to the corresponding federal
counterparts.
III. OSM's Findings
The following are the findings we made concerning the amendment
under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We
are approving the amendment. Any revisions that we do not specifically
discuss below concern non-substantive wording or editorial changes.
a. Minor Revisions to Virginia's Rules
Virginia proposed minor wording changes to the following
previously-approved rules:
------------------------------------------------------------------------
State regulation Federal regulation Topic
------------------------------------------------------------------------
4VAC25-130-773.13........... 30 CFR 773.6........ Public
Participation.
4VAC25-130-773.20(a)........ 30 CFR 773.21(a).... Improvidently Issued
Permits, General
Procedures.
4VAC25-130-774.12(e)........ 30 CFR 774.11....... Post-Permit Issuance
Requirements.
4VAC25-130-774.17(a)........ 30 CFR 774.17....... Transfer,
Assignment, or Sale
of Permit Rights.
4VAC25-130-778.13(c), (d), 30 CFR 778.11....... Identification of
(k), (m). Interests.
4 VAC25-130-801.13(a)(3), None................ Self-bonding.
(a)(7), (b).
------------------------------------------------------------------------
Because these changes are minor, we find that they will not make
Virginia's regulations less effective than the corresponding Federal
regulations and can be approved.
b. Revisions to Virginia's Rules That are Substantively Identical to,
and Therefore No Less Effective Than, the Corresponding Provisions of
the Federal Regulations.
------------------------------------------------------------------------
State regulation Federal regulation Topic
------------------------------------------------------------------------
4VAC25-130-700.5............ 30 CFR 701.5........ Definition of
Applicant Violator
System or AVS;
Control or
Controller; Knowing
or knowingly; Own,
Owner, or
Ownership.
4VAC25-130-700.5............ 30 CFR 800.5........ Definition of Self-
Bond.
4VAC25-130-700.5............ 30 CFR 701.5........ Definitions of
Transfer,
Assignment, or Sale
of Permit Rights;
Violation;
Violation, Failure,
or Refusal;
Violation Notice;
Willful or
Willfully.
4VAC25-130-700.5............ 30 CFR 761.5........ Definition of Valid
Existing Rights.
4VAC25-130-761.11........... 30 CFR 761.11....... Areas Where Mining
is Prohibited or
Limited.
4VAC25-130-761.13........... 30 CFR 761.12(a).... Exception for
Existing
Operations.
4VAC25-130-761.16(a), (b)(1)- 30 CFR 761.16....... Submission and
(4), (c), (d)(1)(i)-(viii) Processing of
(d)(2),(3), (e), (f), and Requests for Valid
(g). Existing Rights
Determinations.
4VAC25-130-772.12(b)(14) and 30 CFR 772.12(b)(14) Permit Requirements
(d)(2)(iv). and (d)(2)(iv). for Exploration
Removing More Than
250 Tons of Coal or
Occurring on Lands
Designated as
Unsuitable for
Surface Coal Mining
Operations.
4VAC25-130-773.15(b)(1)..... 30 CFR 773.7........ Review of Permit
Applications.
4VAC25-130-773.20(c)(3)..... 30 CFR 773.21(c).... Improvidently Issued
Permits: General
Procedures.
4VAC25-130-774.12(a), (d), 30 CFR 774.11(a), Post-Permit Issuance
(e). (b). Requirements
[[Page 31488]]
4VAC25-130-774.17(a)........ 30 CFR 774.17(a).... Transfer,
Assignment, or Sale
of Permit Rights.
4VAC25-130-778.13(a)-(e).... 30 CFR 778.11(a)-(d) Identification of
Interests.
4VAC25-130-778.14(c)........ 30 CFR 778.14(c).... Violation
Information.
------------------------------------------------------------------------
Because the proposed rules contain language that is substantively
identical to the corresponding Federal regulations, we find that they
are no less effective than the corresponding Federal regulations and
can be approved.
c. Revisions to Virginia's Rules That Are Not the Same as the
Corresponding Provisions of the Federal Regulations
1. At 4VAC25-130-773.15--Review of Permit Applications:
(a) At subsection (a)(1) Virginia proposes to require that the
Division review the application for a permit, revision, or renewal;
written comments and objections; information from AVS; and records of
any informal conference or hearing held on the application--and issue a
written decision, within a reasonable time, either granting, requiring
modification of, or denying the application. If an informal conference
is held, the decision will be made within 60 days of the close of the
conference.
The Federal regulations at 30 CFR 773.7(a) require that the
regulatory authority must specify a reasonable time (set by the
regulatory authority) for decisions in those cases where no informal
conference has been requested. Virginia's Memorandum to Operators
13-86 (Administrative Record No. VA-1093) provides time limits
for permit and revision applications, but does not specifically address
renewal applications.
By electronic mail on November 20, 2008 (Administrative Record No.
VA-2003), Virginia clarified its permit renewal review process. It
stated in part, ``A permit renewal is different than a new permit or
revision application, in that there is a set date in which it must be
submitted to the Division * * * at least 120 days before the existing
permit's expiration date. Failure to do so would subject the operation
to cessation of mining operations on the expiration date if a renewal
application was not timely submitted and the permittee was not acting
diligently and in good faith with regard to the permit application. For
timely submitted applications, the Division's decision on the renewal
application is, for the most part, rendered by the existing permit's
expiration date.''
In effect, Virginia must render a decision on a permit renewal
application by the expiration date of the existing permit. Virginia
requires that a renewal application be submitted 120 days prior to the
expiration of the existing permit to accommodate the required filing
and public notice procedures. Therefore, the time period for decisions
is the aforementioned 120-day application timeframe. For these reasons,
we find that the proposed revisions are no less effective than the
corresponding Federal regulations at 30 CFR 773.7(a) and can be
approved.
(b) At subsection (b)(4)(i)(C), Virginia proposes to revise its
violation review procedures to delete the remining exclusion for those
permits, or renewals, issued before September, 2004. We find that these
revisions are no less stringent than the provisions of section 510(e)
of SMCRA, as modified by the Tax Relief and Health Care Act of 2006,
which address permit approval or denial and therefore can be approved.
2. At 4VAC25-130-773.21--Improvidently Issued Permits; Rescission,
Virginia proposes to make the requirements of this section applicable
to permit suspensions, as well as permit rescissions. Virginia is also
requiring that the notice of permit suspension or rescission be posted
at its offices and on its internet home page. It also provides the
procedures for the challenge and review of a person's ownership and
control listing. Additionally, if a permittee files for an
administrative review of the notice or decision pertaining to ownership
and control, Virginia is requiring that the notice of public hearing be
posted at the division office located nearest to the permit.
We find that the proposed revisions are no less effective than the
Federal regulations at 30 CFR 773.23(a)-(d), which address the
administrative review and notification requirements for the suspension
or rescission of improvidently issued permits, and can be approved.
3. At 4VAC25-130-840.14(c)(2)--Availability of Records, Virginia
proposes to post a notice that specifies how and where it will maintain
records pertaining to records, reports, inspection materials, permit
applications, and other information for public inspection and copying.
The notice will be sent to Circuit Court Clerks of coal-producing
counties and will be posted at all Virginia Division of Mined Land
Reclamation offices. Virginia will maintain the records at its
principal office and the information will also be made available, upon
request, at its field office as well as any Federal, State, or local
government office(s) located in the county where the mining is, or may
be proposed to occur.
Virginia is complying with the Federal regulations at 30 CFR
840.14(b) and (c) that require that all pertinent permit information be
made available for public inspection by either maintaining said
information at Federal, State, or local government offices in the
county where mining is occurring or proposed to occur, or mailing or
electronically mailing said information to a requestor based on a
description maintained at the locations named above. We find that the
proposed revisions are no less effective than the Federal regulations
at 30 CFR 840.14(b) and (c) and therefore can be approved.
d. Revisions to Virginia's Rules With No Corresponding Federal
Regulations
1. At 4 VAC 25-130-700.5--Definitions, Virginia proposes to delete
the term and definition of Cognovit Note. It is replaced by Indemnity
Agreement in 4 VAC25-130-801.13. There is no Federal counterpart to
either the definition of Cognovit Note or Indemnity Agreement. However,
the term Indemnity Agreement is used in the definitions of Surety Bond,
Collateral Bond, and Self-Bond, in 30 CFR 800.5, whereas the term
Cognovit Note does not appear in the Federal regulations. Moreover, the
term Indemnity Agreement is defined in a manner that is consistent with
its usage in the aforementioned Federal regulatory definitions.
Therefore, we find that these changes are not inconsistent with the
requirements of SMCRA and the Federal regulations and can be approved.
2. At 4 VAC25-130-773.15(a)(3)-(4)--Review of Permit Applications,
Virginia proposes to require its review of information regarding the
permit applicant's and/or operator's permit
[[Page 31489]]
histories, business structure, and ownership and control relationships.
Virginia may also conduct other ownership and control reviews, as
necessary, in those cases where the applicant has no previous mining
history. While there is no direct Federal counterpart to the proposed
revisions, we find that the revisions are consistent with the general
Federal provisions pertaining to permit application review at 30 CFR
773.7 and therefore can be approved.
3. At 4 VAC25-130-774.12(b), (c)--Post-Permit Issuance
Requirements, Virginia proposes to specify the permittee's required
actions in the event: (1) Said permittee fails to comply with the
remedial measures of an enforcement action, or (2) the identification
of interests information in the permit application changes. While there
is no direct Federal counterpart to the proposed revisions, we find
that the revisions are consistent with the general Federal provisions
pertaining to post-permit issuance at 30 CFR 774.11 and therefore can
be approved.
4. At 4 VAC25-130-778.13(e), (f), (g)--Identification of Interests:
(a) At subsection (e), Virginia proposes to require that a permit
application include a list of all names under which the applicants et
al operate or previously operated a surface coal mining operation
within a 5-year period preceding the submission date of the
application.
(b) At subsection (f), Virginia proposes to require that a permit
application include a list of any pending permit applications with
identifying information for the applicant and operator (if different
from the applicant).
(c) At subsection (g), Virginia proposes to require that a permit
application include certain identifying information for the permittee
and operator. This includes name, address, tax identification numbers,
permits numbers, and ownership relationship.
While there are no direct Federal counterparts to the proposed
revisions, we find that the revisions are consistent with the general
Federal provisions pertaining to permit application review at 30 CFR
778.11 and therefore can be approved.
5. At 4 VAC 25-130-800.52--Bond Forfeiture Reinstatement
Procedures:
(a) Subsection (a), Virginia proposes to delete the reference to
the Board of Conservation and Economic Development, as the entity no
longer exists.
(b) Subsection (a)(5), Virginia proposes to replace the term civil
penalty with reinstatement fee. This revision will differentiate the
fee from the civil penalty that may be assessed under 4 VAC25-130-845.
Virginia also proposes to allow the use of the reinstatement fees for
other investigations, research, or abatement actions relating to lands
and waters affected by coal surface mining activities.
There are no Federal counterpart regulations. We find that the
revisions are not inconsistent with the requirements of SMCRA and the
Federal regulations and can be approved.
6. At 4 VAC 25-130-801.12(d)--Entrance Fee and Bond, Virginia
proposes to require the annual certification of the financial solvency
of a permittee during the term of the permit. There is no Federal
counterpart regulation. We find that the revision is not inconsistent
with the requirements of SMCRA and the Federal regulations and can be
approved.
7. At 4 VAC 25-130-801.13--Self-Bonding:
(a) Subsection (a), Virginia proposes to allow self-bonds from
applicants of proposed surface coal mining operations in the form of an
indemnity agreement. Virginia also proposes to change ``paragraph'' to
``subdivision'' in subsections (a)(3), (a)(7), and (b).
(b) Subsection (a)(1)(iv), Virginia proposes to require that an
applicant of a proposed surface coal mining operation provide evidence
indicating a history of satisfactory continuous operation.
(c) Subsection (a)(3), Virginia proposes to require that an
applicant of a proposed surface mining operation or associated facility
submit evidence substantiating the applicant's financial solvency, with
appropriate financial documentation.
(d) Virginia proposes to replace cognovits note with indemnity
agreement (agreement) throughout the section.
(e) Virginia proposes to delete existing subsection (b) pertaining
to self-bonding provisions for surface coal mining operations. The
surface coal mining permit requirements for self-bonding are addressed
in subsection (a).
While there are no direct Federal counterparts to the proposed
revisions, we find that the revisions are consistent with the general
Federal provisions pertaining to self-bonding at 30 CFR 800.23 and
therefore can be approved.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. VA- 1090). The Virginia Department of Historic Resources
commented that no historic properties will be affected by the
provisions of the proposed amendment (Administrative Record No.VA-
1095). We received several comments filed jointly by the Southern
Appalachian Mountain Stewards (SAMS) and the Sierra Club
(Administrative Record No.VA-2006). Responses to those comments follow.
The joint commenters are referred to as ``SAMS/Sierra Club'' or ``the
commenters.'' SAMS/Sierra Club contend that OSM must disapprove the
portion of the amendment that, according to them, ``would effectively
require any person who disputes the property rights assertion at the
root of a [valid existing rights] VER claim either to commence
litigation against the permit applicant prior to the expiration of the
comment period on the VER request or else allow [the Virginia
Department of Mines, Minerals & Energy] DMME to `evaluate the merits of
the information in the record' with respect to disputed property rights
and then to `determine whether the [permit applicant] has demonstrated
that the requisite property rights exist.' '' The Virginia proposed
provision SAMS/Sierra Club refer to is at 4 VAC 25-130-130-
761.16(e)(3). They argue that this provision is ``fundamentally flawed
in at least two respects.'' SAMS/Sierra Club Comment #1: First, SAMS/
Sierra Club state that the amendment would unlawfully shift the burden
of commencing property rights dispute litigation to persons who oppose
approval of the permit application, rather than placing the burden on
the permit applicant, which, according to SAMS/Sierra Club, is mandated
by SMCRA at 30 U.S.C. 1260(a). This statutory provision states that
``[t]he applicant for a permit, or revision of a permit, shall have the
burden of establishing that his application is in compliance with all
the requirements of the applicable State or Federal program.'' Thus,
according to the commenters, a permit applicant must seek judicial
resolution of a property rights dispute in order to satisfy the
property rights component of a VER determination; SMCRA does not, they
contend, allow a State regulatory authority to undertake such an
adjudication. For these reasons, SAMS/Sierra Club insist that OSM is
required, pursuant to 30 CFR 732.17(h)(10), to disapprove 4 VAC 25-130-
130-761.16(e)(3)(i) and clarify that ``federal law does not permit DMME
to adopt any regulation that would relieve permit applicants of the
obligation to obtain a
[[Page 31490]]
valid adjudication of any property rights dispute pertinent to the
`right to mine' demonstration that each permit applicant must make,
including any claim to VER that may be a part of the applicant's `right
to mine' demonstration. Permit applicants must commence and complete
such proceedings in order to submit a complete application; state
regulatory authorities may not shift that burden to persons who dispute
the applicant's right to mine, including any property-rights based
claim to VER that an applicant may make.''
OSM's Response: We disagree with SAMS/Sierra Club. The Virginia
provision is identical in substance to the counterpart Federal
regulation at 30 CFR 761.16(e)(3)(i), which states as follows:
The agency must issue a determination that you have not
demonstrated valid existing rights if your property rights claims
are the subject of pending litigation in a court or administrative
body with jurisdiction over the property rights in question. The
agency will make this determination without prejudice, meaning that
you may refile the request once the property rights dispute is
finally adjudicated. This paragraph applies only to situations in
which legal action has been initiated as of the closing date of the
comment period under paragraph (d)(1) or (d)(3) of this section.
The VER regulations published by OSM on December 17, 1999 (64 FR
70766-70838), which include the provision quoted above, were challenged
by the National Mining Association and upheld by the United States
Court of Appeals for the District of Columbia Circuit in Nat'l Mining
Ass'n v. Kempthorne, 512 F.3d 702 (D. C. Cir. 2008), cert. denied 172
L. Ed. 2d 639 (U.S. Dec. 1, 2008). Thus, as noted in Finding III(b)
above, the Virginia provision at 4 VAC 25-130-130-761.16(e)(3)(i) is
substantively identical to, and no less effective than, its Federal
counterpart, and is therefore approved.
SAMS/Sierra Club Comment #2: Second, the commenters assert that the
Virginia regulation at 4 VAC 25-130-130-761.16(e)(3)(ii), which would
permit the DMME ``to evaluate the merits of the information in the
record and determine whether the person has demonstrated that the
requisite property rights exist under subdivision (a), (c)(1), or
(c)(2) of the valid existing rights definition * * *, as appropriate,''
is ``flatly inconsistent with SMCRA's dictate that `nothing in this Act
shall be construed to authorize the regulatory authority to adjudicate
property rights disputes.'' 30 U.S.C. 1260(b)(6). Instead, SAMS/Sierra
Club argues, SMCRA requires the regulatory authority to ``withhold
approval of the pertinent permit application unless and until the
permit applicant obtains a favorable adjudication of that dispute in
accordance with pertinent state law[.]'' For this reason, they contend,
the DMME may not ``evaluate the merits of information in the record''
to ``determine whether the [permit applicant] has demonstrated that
requisite property rights exist, as provided for in paragraph
(e)(3)(ii), because to do so would ``constitute an administrative
adjudication of property rights that SMCRA flatly prohibits a
regulatory authority from undertaking.'' Therefore, the commenters
conclude, OSM must disapprove 4 VAC 25-130-130-761.16(e)(3)(ii), and
``make clear that federal law does not permit DMME to adopt any
regulation that would empower it to adjudicate any property rights
dispute pertinent to any of its activities under the approved Virginia
state program.''
OSM's Response: We disagree with SAMS/Sierra Club, based precisely
on the rationale set forth in our response to SAMS/Sierra Club Comment
1, above. The Virginia provision is substantively identical
to, and therefore no less effective than, its Federal counterpart
addressing valid existing rights claims at 30 CFR 761.16(e)(3)(ii),
which states:
If the record indicates disagreement as to the accuracy of your
property rights claims, but this disagreement is not the subject of
pending litigation in a court or administrative agency of competent
jurisdiction, the agency must evaluate the merits of the information
in the record and determine whether you have demonstrated that the
requisite property rights exist under paragraph (a), (c)(1), or
(c)(2) of the definition of valid existing rights in Sec. 761.5, as
appropriate. The agency must then proceed with the decision process
under paragraph (e)(2) of this section.
This Federal provision was part of the same VER challenge that
resulted in the upholding of all of the Federal VER regulations
promulgated by OSM on December 17, 1999 (64 FR 70766-70838). Nat'l
Mining Ass'n v. Kempthorne, supra. The Federal regulation provides, if
there is no pending litigation in a court or administrative agency of
competent jurisdiction on the question of property rights, the
regulatory agency must evaluate the merits of the information submitted
and determine if the applicable regulatory provisions for demonstrating
requisite property rights under the definition of valid existing rights
have been satisfied. As indicated, the Virginia provision is
substantively identical to the Federal provision. For these reasons, we
approve the Virginia regulation at 4 VAC 25 130 130 761.16(e)(3)(ii).
SAMS/Sierra Club Comment #3: The commenters also objected to the
comment period provided for by 4 VAC 25-130-761.16(d)(3). The
commenters contend that the 30 day comment period for a VER
determination, which may be expanded to 60 days at the DMME's
discretion, ``establishes an unreasonably brief period within which
coalfield citizens who wish to challenge a VER claim must commence
litigation to resolve an underlying property rights dispute,'' as set
forth in 4 VAC 25-130-130-761.16(e)(3)(ii). The comment period would,
according to SAMS/Sierra Club, ``have the effect of limiting citizen
access to necessary legal services, or even foreclosing such access
altogether, due to the likely refusal of attorneys to accept matters on
such an emergency footing [.]'' Thus, according to the commenters, even
if it were lawful to require citizens to commence property rights
dispute litigation (which the commenters say is certainly not the
case), ``OSM's duty to foster participation in the Virginia program
would require * * * [it] to withhold approval of DMME's proposed permit
amendment unless and until DMME provides at least a 90-day public
comment period * * *, together with provision for mandatory extension *
* * for an additional 30 days if an attorney representing a person who
intends to file a property rights dispute establishes a good faith need
for additional time to prepare and file litigation.''
OSM's Response: SAMS/Sierra Club provides no rationale for
requiring DMME to establish a minimum comment period of 90 days for a
VER determination, with a mandatory 30 day extension based upon a good
faith need for more time by an attorney representing the would-be
plaintiff in a property rights dispute. Indeed, the Federal regulation
at 30 CFR 761.16(d)(3), which is now settled law, establishes a 30 day
period, with an additional 30 days upon request, followed by the
possibility of further extensions at the discretion of the regulatory
authority, based upon a showing of good cause by the requestor; it does
not, however, mandate a comment period longer than 60 days, as
requested by SAMS/Sierra Club. Therefore, we disagree with the
commenters that Virginia must provide a longer comment period than is
allowed under the Federal regulatory counterpart.
SAMS/Sierra Club Comment #4: Finally, the commenters request that,
if it has not done so, OSM must submit
[[Page 31491]]
the proposed amendment to Virginia's State Historic Preservation
Officer (SHPO) and to the Advisory Council on Historic Preservation
(ACHP) for comment, pursuant to 30 CFR 732.17(h)(4).
OSM's Response: We sent letters to both the Virginia SHPO and the
ACHP on August 12, 2008 (Administrative Record No.VA-1090). By letter
dated September 9, 2008, the SHPO notified us that no impacts to
historic properties were anticipated if we were to approve this
amendment (Administrative Record No.VA-1095).
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on
August 12, 2008, we requested comments on the amendments from various
Federal agencies with an actual or potential interest in the Virginia
program (Administrative Record No. VA-1090). 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 Services 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)(i), we requested comments on the
amendment from the EPA (Administrative Record No. VA-1090). No comments
were received.
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.). None of the revisions that 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.
V. OSM's Decision
Based on the above findings, we are approving the amendment sent to
us by Virginia on July 17, 2008. To implement this decision, we are
amending the Federal regulations at 30 CFR part 946, which codify
decisions concerning the Virginia program. Pursuant to 5 U.S.C.
553(d)(3), an agency may, upon a showing of good cause, waive the 30
day delay of the effective date of a substantive rule following
publication in the Federal Register, thereby making the final rule
effective immediately.
We find that good cause exists under 5 U.S.C. 553(d)(3) to make
this final rule effective immediately. Because 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.
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)).
[[Page 31492]]
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 the provisions in
this rule that are based on 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 an analysis prepared for the counterpart
Federal regulations and the certification made that such regulations
would not have a significant economic impact upon a substantial number
of small entities. 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, 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: July 21, 2011.
Thomas D. Shope,
Regional Director, Appalachian Region.
Editor's note: This document was received by the Office of the
Federal Register on May 23, 2012.
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 of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
July 17, 2008................. May 29, 2012..... 4VAC 25-130-700.5,
4VAC25-130-761.11,
4VAC25-130-761.13,
4VAC25-130-761.16,
4VAC25-130-772.12,
4VAC 25-130-773.13,
4VAC 25-130-773.15,
4VAC 25-130-
773.20(c)(3), 4VAC
25-130-773.21, 4VAC
25-130-774.12, 4VAC
25-130-774.17(a),
4VAC 25-130-778.13,
4VAC 25-130-
778.14(c), 4VAC 25-
130-800.52(a) and
(a)(5), 4VAC 25-130-
801.12(c) and (d),
4VAC 25-130-801.13,
4VAC 25-130-
840.14(c)(2), 4VAC
25-130-846.2.
------------------------------------------------------------------------
[[Page 31493]]
[FR Doc. 2012-12933 Filed 5-25-12; 8:45 am]
BILLING CODE 4310-05-P
