Alabama Regulatory Program, 18409-18412 [2018-08935]

Agencies

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

[Federal Register Volume 83, Number 82 (Friday, April 27, 2018)]
[Rules and Regulations]
[Pages 18409-18412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08935]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 901

[SATS No. AL-078-FOR; Docket ID: OSMRE-2015-0005; S1D1S SS08011000 
SX064A000 178S180110; S2D2S SS08011000 SX064A000 17XS501520]


Alabama Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving an amendment to the Alabama regulatory program 
(Alabama program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act). Alabama proposed revisions clarifying that 
the venue for appeals of Alabama Surface Mining Commission decisions 
resides in the Circuit Court of the county in which the agency 
maintains its principal

[[Page 18410]]

office. Alabama is revising its program to be no less effective than 
the Federal regulations and to improve operational efficiency.

DATES: The effective date is May 29, 2018.

FOR FURTHER INFORMATION CONTACT: Bill Joseph, Acting Director, 
Birmingham Field Office, Office of Surface Mining Reclamation and 
Enforcement, 135 Gemini Circle, Suite 215, Homewood, AL 35209. 
Telephone: (918) 5814-6431 ext. 230. Email: [email protected].

SUPPLEMENTARY INFORMATION: 
I. Background on the Alabama Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Procedural Determinations

I. Background on the Alabama 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, State laws and regulations 
that govern surface coal mining and reclamation operations in 
accordance with the Act and consistent with the Federal regulations. 
See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the 
Secretary of the Interior conditionally approved the Alabama program 
effective May 20, 1982. You can find background information on the 
Alabama program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval of the Alabama program in the 
May 20, 1982, Federal Register (47 FR 22030). You can also find later 
actions concerning the Alabama program and program amendments at 30 CFR 
901.10, 901.15 and 901.16.

II. Submission of the Amendment

    By letter dated June 12, 2015 (Administrative Record No. AL-0666), 
Alabama sent us an amendment to its program under SMCRA (30 U.S.C. 1201 
et seq.) at its own initiative.
    We announced receipt of the proposed amendment in the October 5, 
2015, Federal Register (80 FR 60107). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the adequacy of the amendment. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on November 4, 2015. We received four public 
comments (Administrative Record No. AL-0666-03) that are addressed in 
the Public Comments section of part IV. Summary and Disposition of 
Comments.

III. OSMRE's Findings

    We are approving the amendment as described below. The following 
are the findings we made concerning Alabama's amendment under SMCRA and 
the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that 
we do not specifically discuss below concerning non-substantive wording 
or editorial changes can be found in the full text of the program 
amendment available at www.regulations.gov.

1. Code of Alabama Section 9-16-79 Hearing and Appeals

    Alabama added new language clarifying that procedures for the 
Alabama Surface Mining Commission are governed by this section of the 
Alabama Code because the Alabama Surface Mining Commission (ASMC) is 
within the jurisdiction of the Alabama Surface Mining Act and the 
procedures for hearings and appeals may be no less effective than the 
Federal counterpart. This clarification is necessary to distinguish 
this article of the code from other sections of the Alabama Code that 
are exclusively governed by the Alabama Administrative Procedure Act 
and have no impact upon the implementation of the Alabama Surface 
Mining Act.
    We find that Alabama's clarification does not make its rules or 
regulations less effective than, or inconsistent with, the Federal 
requirements. Therefore, we are approving Alabama's revision.

2. Code of Alabama Section 9-16-79 Hearing and Appeals; Procedures 
(4)b.

    Alabama made edits and added new language to this paragraph 
clarifying that the venue for appeals of Alabama Surface Mining 
Commission decisions resides in the Circuit Court of the county in 
which the agency maintains its principal office.
    We find that Alabama's edits and clarifications do not make its 
rules inconsistent with the requirements of SMCRA section 526(e). 
Therefore, we are approving Alabama's revisions.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment. As noted in Section 
II, we received four comments, which generally focused on two issues. 
The comments received are discussed below.
    First, the commenters alleged that the proposed program amendment 
violates the venue-provisions of SMCRA as they relate to actions 
seeking judicial review of final decisions. Two of the commenters cited 
section 520(c)(1) as support for this comment. That provision states 
that citizen suits ``may be brought only in the judicial district in 
which the surface coal mining operation complained of is located.'' 30 
U.S.C. 1270(c)(1).
    Contrary to the commenters' assertion, this change to Alabama's 
program does not violate section 520(c)(1) of SMCRA. Even with the 
program amendment, citizen suits may still be filed by any person 
having an interest in the judicial district in which the surface coal 
mining operation complained of is located. Final decisions of the ASMC 
cannot be the subject of citizen suits. Instead, challenges to final 
decisions of the ASMC are challenged under the Alabama counterpart to 
section 526 of SMCRA. In contrast to section 520(c)(1), section 526(e) 
of SMCRA provides that an ``[a]ction of the State regulatory authority 
pursuant to an approved State program shall be subject to judicial 
review by a court of competent jurisdiction in accordance with State 
law.'' Section 526(e) also makes clear that its judicial review 
provisions do not extend to citizen suits under section 520. 30 U.S.C. 
1276(e) (``the availability of such review shall not be construed to 
limit the operation of the rights established in section 520 except as 
provided therein.''). Because the county in which the ASMC maintains 
its principal office is a court of competent jurisdiction in Alabama, 
it is not inconsistent with SMCRA for Alabama to specify that all 
actions challenging its decisions must be brought there.
    Second, the commenters alleged that requiring judicial review of 
ASMC final decisions in the circuit court of the county in which the 
commission maintains its principal office would unfairly limit the 
rights of citizens, would be difficult and expensive for citizens, and 
would provide for potential bias based upon industry and politics.
    We understand the citizens' concerns, but we do not find that they 
make the Alabama program inconsistent with SMCRA. For example, on the 
federal level, when a citizen brings a lawsuit in the ``judicial 
district in which the surface coal mining operation complained of is 
located,'' the judicial district may be made up of multiple counties or 
even an entire state. Even in these situations, the litigation often 
occurs in a county that is different than the county where either the 
citizen resides or the surface coal mining operation is located. 
Therefore, it is not inconsistent with SMCRA that the

[[Page 18411]]

venue is located away from the citizen's county or residence or the 
location of the surface coal mining operation. Because our role is 
solely to determine whether Alabama's proposed amendment is consistent 
with SMCRA--and it is--we have no basis to disapprove the amendment 
based on the concerns raised by the commenters.

Federal Agency Comments

    On June 26, 2015, under 30 CFR 732.17(h)(11)(i) and section 503(b) 
of SMCRA, we requested comments on the amendment from various Federal 
agencies with an actual or potential interest in the Alabama program 
(Administrative Record No. AL-0666-03). We did not receive any 
comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the 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 Alabama proposed to 
make in this amendment pertain to air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment. However, on 
June 26, 2015, under 30 CFR 732.17(h)(11)(i), we requested comments 
from the EPA on the amendment (Administrative Record No. AL-0666-03). 
The EPA did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On June 26, 2016, we requested comments on Alabama's 
amendment (Administrative Record No. AL-0666-03), but neither the SHPO 
nor the ACHP responded to our request.

V. OSMRE's Decision

    Based on the above findings, we approve the amendment Alabama sent 
us on June 12, 2015 (Administrative Record No. AL-0666).
    To implement this decision, we are amending the Federal 
regulations, at 30 CFR part 901, that codify decisions concerning the 
Alabama program. In accordance with the Administrative Procedure Act, 
this rule will take effect 30 days after the date of publication. 
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. SMCRA requires consistency of State and 
Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rulemaking does not have takings implications. This 
determination is based on the analysis performed for the counterpart 
Federal regulation.

Executive Order 12866--Regulatory Planning and Review

    Pursuant to Office of Management and Budget (OMB) Guidance dated 
October 12, 1993, the approval of state program amendments is exempted 
from OMB review under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by section 3(a) of Executive Order 12988. The Department determined 
that this Federal Register notice meets the criteria of Section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
reviews its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency write its legislation and 
regulations to minimize litigation; and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because Section 3 focuses on the quality of Federal 
legislation and regulations, the Department limited its review under 
this Executive Order to the quality of this Federal Register notice and 
to changes to the Federal regulations. The review under this Executive 
Order did not extend to the language of the State regulatory program or 
to the program amendment that the State of Alabama drafted.

Executive Order 13132--Federalism

    This rule is not a ``[p]olicy that [has] Federalism implications'' 
as defined by section 1(a) of Executive Order 13132 because it does not 
have ``substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.'' 
Instead, this rule approves an amendment to the Alabama program 
submitted and drafted by that State. OSMRE reviewed the submission with 
fundamental federalism principles in mind as set forth in sections 2 
and 3 of the Executive Order and with the principles of cooperative 
federalism set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As such, 
pursuant to section 503(a)(1) an (7) (30 U.S.C. 1253(a)(1) and (7)), 
OSMRE reviewed the program amendment to ensure that it is ``in 
accordance with'' the requirements of SMCRA and is ``consistent with'' 
the 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 rulemaking on federally recognized Indian 
tribes and have determined that the rulemaking 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

    Executive Order 13211 of May 18, 2001, requires agencies to prepare 
a Statement of Energy Effects for a rulemaking 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 rulemaking 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 rulemaking does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rulemaking does not contain information collection 
requirements that require approval by OMB under the Paperwork Reduction 
Act (44 U.S.C. 3507 et seq.).

[[Page 18412]]

Regulatory Flexibility Act

    The Department of the Interior certifies that this rulemaking will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal, which is the subject of this rulemaking, is based 
upon counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether this rulemaking 
would have a significant economic impact, the Department relied upon 
the data and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rulemaking is not a major rule under 5 U.S.C. 804(2), the 
Small Business Regulatory Enforcement Fairness Act. This rulemaking: 
(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 the State 
submittal, which is the subject of this rulemaking, is 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.

Unfunded Mandates

    This rulemaking 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 
the State submittal, which is the subject of this rulemaking, 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.

List of Subjects in 30 CFR Part 901

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 3, 2018.
Alfred L. Clayborne,
Regional Director, Mid-Continent Region.

    For the reasons set out in the preamble, 30 CFR part 901 is amended 
as set forth below:

PART 901--ALABAMA


0
1. The authority citation for part 901 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


0
2. Section 901.15 is amended in the table by adding an entry FOR 
``ASMCRA 9-16-79 and 9-16-79(4)b'' in chronological order by ``Date of 
final publication'' to read as follows:


Sec.  901.15   Approval of Alabama regulatory program amendments.

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                                                      Date of final
      Original amendment submission date               publication                 Citation/description
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                                                  * * * * * * *
June 12, 2015.................................           April 27, 2018   ASMCRA 9-16-79 and 9-16-79(4)b.
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[FR Doc. 2018-08935 Filed 4-26-18; 8:45 am]
 BILLING CODE 4310-05-P