Mississippi Regulatory Program

Federal Register: August 26, 2008 (Volume 73, Number 166)

Proposed Rules

Page 50263-50265

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr26au08-22

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement 30 CFR Part 924

SATS No. MS-018-FOR; Docket No. OSM-2008-0017

Mississippi Regulatory Program

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

ACTION: Proposed rule; reopening and extension of public comment period on proposed amendment.

SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement

(OSM), are announcing receipt of revisions to a previously proposed amendment to the Mississippi regulatory program (Mississippi program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Mississippi proposes a revision to its regulations regarding valid existing rights as it pertains to designation of lands as unsuitable for surface coal mining operations. Mississippi intends to revise its program to be consistent with SMCRA.

This document gives the times and locations that the Mississippi program and proposed amendment to that program are available for your inspection and the comment period during which you may submit written comments on the revisions to the amendment.

DATES: We will accept written comments on this amendment until 4 p.m., c.t., September 10, 2008.

ADDRESSES: You may submit comments by either of the following two methods:

Federal eRulemaking Portal: http://www.regulations.gov.

The proposed rule is listed under the agency name ``OFFICE OF SURFACE

MINING RECLAMATION AND ENFORCEMENT'' and has been assigned Docket ID:

OSM-2008-0017. If you would like to submit comments through the Federal erulemaking Portal, go to http://www.regulations.gov and do the following. Click on the ``Advanced Docket Search'' button on the right side of the screen. Type in the Docket ID OSM-2008-0017 and click the submit button at the bottom of the page. The next screen will display the Docket Search Results for the rulemaking. If you click on the OSM- 2008-0017, you can view the proposed rule and submit a comment. You can also view supporting material and any comments submitted by others.

Mail/Hand Delivery/Courier: Sherry Wilson, Director,

Birmingham Field Office, Office of Surface Mining Reclamation and

Enforcement, 135 Gemini Circle, Suite 215, Homewood, Alabama 35209.

Please include the Docket ID (OSM-2008-0017) with your comments.

We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than the two listed above will be included in the docket for this rulemaking and considered.

For additional information on the rulemaking process and the public availability of comments, see ``III. Public Comment Procedures'' in the

SUPPLEMENTARY INFORMATION section of this document.

You may receive one free copy of the amendment by contacting OSM's

Birmingham Field Office. See below FOR FURTHER INFORMATION CONTACT.

You may review a copy of the amendment during regular business hours at the following locations:

Sherry Wilson, Director, Birmingham Field Office, Office of Surface

Mining Reclamation and Enforcement, 135 Gemini Circle, Suite 215,

Homewood, Alabama 35209, Telephone: (205) 290-7282, swilson@osmre.gov.

Michael B. E. Bograd, Director, Mississippi Department of Environmental

Quality, 2380 Highway 80 West, P.O. Box 20307, Jackson, Mississippi 39289-1307, Telephone: (601) 961-5500.

FOR FURTHER INFORMATION CONTACT: Sherry Wilson, Director, Birmingham

Field Office. Telephone: (205) 290-7282. E-mail: swilson@osmre.gov.

SUPPLEMENTARY INFORMATION:

1. Background on the Mississippi Program

2. Description of the Proposed Amendment

3. Public Comment Procedures

4. Procedural Determinations

1. Background on the Mississippi Program

   Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and

   Page 50264

   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 this

   Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and

   (7). On the basis of these criteria, the Secretary of the Interior approved the Mississippi program on September 4, 1980. You can find background information on the Mississippi program, including the

   Secretary's findings and the disposition of comments in the September 4, 1980, Federal Register (45 FR 58520). You can also find later actions concerning the Mississippi program and program amendments at 30

   CFR 924.10, 924.15, 924.16, and 924.17.

2. Description of the Proposed Amendment

   By letter dated April 5, 2006 (Administrative Record No. MS-0402),

   Mississippi sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). Mississippi sent the amendment at its own initiative.

   We announced receipt of the proposed amendment in the May 24, 2006,

   Federal Register (71 FR 29867) and invited public comment on its adequacy. The public comment period ended June 23, 2006.

   During our review of the amendment, we identified concerns relating to Mississippi's definition for ``valid rights'' in its statute and associated regulations in sections 105, 1101, and 1105 of the

   Mississippi Surface Coal Mining Regulations. We notified Mississippi of these concerns by letter dated August 17, 2006 (Administrative Record

   No. MS-0414). By letter dated May 30, 2008, Mississippi sent us additional explanatory information (Administrative Record No. MS-0416- 02). By e-mail dated July 23, 2008, Mississippi also sent us revisions to its amendment (Administrative Record No. MS-0416-03). Below are the revisions Mississippi proposes.

   1. Mississippi Surface Coal Mining Regulations (MSCMR) 105. Definitions

      Mississippi proposes to add a definition for ``valid rights'' to read as follows:

      Valid Rights--as used in Sec. 53-9-71(4) of the Act means Valid

      Existing Rights.

   2. MSCMR 1101. Authority

      Mississippi proposes to revise this section to read as follows:

      The Commission is authorized by Sec. 53-9-71(4) of the Act to prohibit or limit surface coal mining operations on or near certain private, federal and other public lands, subject to valid rights.

   3. MSCMR 1105. Areas Where Mining is Prohibited or Limited

      Mississippi proposes to revise the introductory paragraph of this section to read as follows:

      Subject to valid existing rights as defined in Sec. 105, no surface coal mining operations shall be conducted on the following lands unless you have valid existing rights as determined under

      Sec. 1106 or qualify for the exception for existing operations under paragraph (h) of this section:

3. Public Comment Procedures

   Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.

   Written Comments

   Send your comments to us by one of the two methods specified above.

   Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than the two listed above (see ADDRESSES) will be included in the docket for this rulemaking and considered.

   Public Availability of Comments

   Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment--including your personal identifying information--may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

4. Procedural Determinations

   Executive Order 12630--Takings

   In this rule, the State is adopting valid existing rights standards that are similar to the standards in the Federal definition at 30 CFR 761.5. Therefore, this rule has the same takings implications as the

   Federal valid existing rights rule. The takings implications assessment for the Federal valid existing rights rule appears in part XXIX.E. of the preamble to that rule. See 64 FR 70766, 70822-27, December 17, 1999.

   Executive Order 12866--Regulatory Planning and Review

   This rule is exempted from review by the Office of Management and

   Budget (OMB) 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

   Page 50265

   Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This determination is based on the fact that the Mississippi program does not regulate coal exploration and surface coal mining and reclamation operations on

   Indian lands. Therefore, the Mississippi program has no effect on

   Federally-recognized Indian tribes.

   Executive Order 13211--Regulations That Significantly Affect the

   Supply, Distribution, or Use of Energy

   On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a

   Statement of Energy Effects is not required.

   National Environmental Policy Act

   This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

   Paperwork Reduction Act

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

   Regulatory Flexibility Act

   The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

   The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

   Small Business Regulatory Enforcement Fairness Act

   This rule is not a major rule under 5 U.S.C. 804(2), the Small

   Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that 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 was not considered a major rule.

   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 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.

   List of Subjects in 30 CFR Part 924

   Intergovernmental relations, Surface mining, Underground mining.

   Dated: July 30, 2008.

   Sherry Wilson,

   Acting Regional Director, Mid-Continent Region.

   FR Doc. E8-19713 Filed 8-25-08; 8:45 am

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