[Federal Register Volume 64, Number 161 (Friday, August 20, 1999)]
[Proposed Rules]
[Pages 45489-45491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21643]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-116-FOR]


Virginia Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: OSM is announcing it received a proposed amendment to the 
Virginia regulatory program (hereinafter referred to as the Virginia 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). The proposed amendment consists of the following: a statutory 
change to the Virginia Act at section 45.1-235 C as enacted in the 1999 
session of the Virginia General Assembly; proposed regulation changes 
at section 4 VAC 25-130-700.5 to the definitions of ``government 
financed construction'' and ``qualified laboratory;'' and proposed 
regulation changes to section 4 VAC 25-130 Part 795 concerning the 
small operator assistance program (SOAP). The amendment is intended to 
revise the Virginia program to be consistent with the corresponding 
Federal provisions.
DATES: Your written comments must be received by 4:00 p.m., on 
September 20, 1999. If you request a public hearing on the proposed 
amendment, it will be held on September 14, 1999. If you request to 
speak at the hearing, your request must be received by 4:00 p.m., on 
September 7, 1999.

ADDRESSES: Your written comments and requests to speak at the hearing 
should be mailed or hand delivered to Mr. Robert A. Penn, Director, Big 
Stone Gap Field Office at the first address listed below.

    Copies of the Virginia program, the proposed amendment, a listing 
of any scheduled public hearings, and all written comments that we 
receive in response to this document will be available for your review 
at the addresses listed below during normal business hours, Monday 
through Friday, excluding holidays. Each person may receive one free 
copy of the proposed amendment by contacting OSM's Big Stone Gap Field 
Office.
    Office of Surface Mining Reclamation and Enforcement:

Big Stone Gap Field Office, 1941 Neeley Road, Suite 201, Compartment 
116, Big Stone Gap, Virginia 24219, Telephone: (703) 523-4303.
Virginia Division of Mined Land Reclamation, P. O. Drawer 900, Big 
Stone Gap, Virginia 24219, Telephone: (703) 523-8100.

FOR FURTHER INFORMATION CONTACT: Mr. Robert A Penn, Director, Big Stone 
Gap Field Office, Telephone: (703) 523-4303.

SUPPLEMENTARY INFORMATION:

I. Background on the Virginia Program

    On December 15, 1981, the Secretary of the Interior conditionally 
approved the Virginia program. You can find background information on 
the Virginia program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the December 
15, 1981, Federal Register (46 FR 61085-61115). You can find later 
actions concerning the conditions of approval and program amendments at 
30 CFR 946.12, 946.13, 946.15, and 946.16.

II. Discussion of the Proposed Amendment

    By letter dated August 2, 1999 (Administrative Record No. VA-978), 
the Virginia Department of Mines, Minerals and Energy (DMME) submitted 
an amendment to the Virginia program. This amendment is the State's 
response to changes made to the Federal SOAP regulations at 30 CFR Part 
795, and to the Federal definition of ``government-financed 
construction'' at 30 CFR 707.5.
    The proposed amendment consists of the following: a statutory 
change to the Virginia Act at section 45.1-235 C as enacted in the 1999 
session of the Virginia General Assembly; proposed regulation changes 
at section 4 VAC 25-130-700.5 concerning the definitions of 
``government financed construction'' and ``qualified laboratory;'' and 
proposed regulation changes to section 4 VAC 25-130 Part 795 concerning 
the SOAP program. The amendments are described below.

Statute

    Section 45.1-235 of the Code of Virginia. Subsection 45.1-235 C, 
concerning SOAP, is amended by deleting the existing language and 
adding in its place the following language.

    To the extent that funds are available from the federal Office 
of Surface Mining, the Director shall provide for permit application 
assistance to small operators as provided in Section 507 (c) and (h) 
of the federal act. Such assistance shall be provided in accordance 
with regulations adopted by the Director.

Regulations

1. 4 VAC 25-130-700.5  Definitions
    The definition of ``government-financed construction'' is amended 
to provide for less than 50 percent government funding. As amended, 
``government financed construction'' means construction funded 50 
percent or more by funds appropriated from a government financing 
agency's budget or obtained from general revenue bonds. Funding at less 
than 50 percent may qualify if the construction is undertaken as an 
approved reclamation project under Title IV of the Federal Act. 
Construction funded through government financing agency guarantees, 
insurance, loans, funds obtained through industrial revenue bonds or 
their equivalent, or in-kind payments does not qualify as government-
financed construction.
    The definition of ``qualified laboratory'' is amended to add the 
phrase ``or other services as specified at 4 VAC 25-130-795.9.'' With 
this addition, ``qualified laboratory'' means a designated public 
agency, private firm, institution, or analytical laboratory which can 
prepare the required determination of probable hydrologic consequences 
or statement of results of test borings or core samplings or other 
services as specified at 4 VAC 25-130-795.9 under the SOAP program and 
which meets the standards of 4 VAC 25-130-795.10.
2. 4 VAC 25-130-795.1  Scope and Purpose
    This provision is amended by deleting the words ``program 
administrator'' and replacing those words with the word ``Division.''
3. 4 VAC 25-130-795.6  Eligibility for Assistance
    This provision is amended at subdivision 795.6(a)(2) by changing 
the qualifying annual tonnage limit from 100,000 tons to 300,000 tons. 
In addition, at subdivisions 795.6(a)(2)(i) and (ii), the pro rata 
share is increased from 5 percent to 10 percent.
4. 4 VAC 25-130-795.7  Filing for Assistance
    This provision is amended at subdivision 795.7(e) by deleting 
subdivisions 795.7(e)(2) and (5), and renumbering the remaining 
provisions. Deleted subdivision 795.7(e)(2) required the names of 
property owners in the affected and adjacent areas. Deleted subdivision 
795.7(e)(5) required the location of existing structures and developed 
water resources within the affected and adjacent areas.

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5. 4 VAC 25-130-795.8  Application Approval and Notice
    The sole sentence of this provision is deleted and replaced with 
the following. New subdivision 795.8(a) provides that if the Division 
finds the applicant eligible, the Division shall inform the applicant 
in writing that the application is approved. New subdivision 795.8(b) 
provides that if the Division finds the applicant ineligible, the 
Division shall inform the applicant in writing that the application is 
denied and shall state the reasons for denial.
6. 4 VAC 25-130-795.9 Program Services and Data Requirements.
    In addition to non-substantive changes, the following changes are 
made to this provision. At subdivision 795.9(a), the phrase ``and 
provide other services'' is added. With this change, a ``qualified 
laboratory'' may be paid for other services in addition to the 
determination and statement referenced in subdivision 795.9(b).
    At subdivision 795.9(b)(1), the phrase ``including the engineering 
analysis and designs necessary for the determination'' is added. Also, 
the citation ``4 VAC 25-130-784.14(g)'' is changed to ``. . . 
784.14(e).''
    At subdivision 795.9(b)(2), the words ``drilling and'' are added 
immediately following the first word of the sentence.
    New subdivisions 795.9(b)(3), (4), (5), and (6) are added. New 
795.9(b)(3), provides for the development of cross-section maps and 
plans required by 4 VAC 25-130-779.25 and 783.25. New 795.9(b)(4) 
provides for the collection of archaeological and historic information 
and related plans required by 4 VAC 25-130-779.12(b), 783.12(b), 
780.31, 784.17, and any other archaeological and historic information 
required by the Director. New 795.9(b)(5) provides for pre blast 
surveys required by 4 VAC 25-130-780.13. New 795.9(b)(6) provides for 
the collection of site-specific resources information, the production 
of protection and enhancement plans for fish and wildlife habitats 
required by 4 VAC 25-130-780.16 and 784.21, and information and plans 
for any other environmental values required by the Division under the 
Act.
7. 4 VAC 25-130-795.10  Qualified Laboratories
    Subdivision 4 VAC 25-130-795.10(a)(5) is amended by adding language 
which provides that other appropriate methods or guidelines for data 
acquisition may be approved by the Division. Subdivision 795.10(b) is 
amended to provide that subcontractors may be used to provide some of 
the required services provided their use is identified at the time a 
determination is made that a firm is qualified and they meet 
requirements specified by the Division. Prior to this amendment, 
subdivision 795.10(b) provided that subcontractors had to meet all 
applicable requirements for area of specialization pursuant to the 
program and this section. Subdivisions 795.10(c) and (d) are deleted. 
Subdivision 795.10(c) concerned the qualification of out-of-state 
firms. Subdivision 795.10(d) provided that review and approval of all 
laboratory qualifications would be made every 12 months.
8. 4 VAC 25-130-795.12  Applicant Liability
    In subdivision 4 VAC 25-130-795.12(a), the term ``applicant'' is 
deleted and replaced by the phrase ``coal operator who has received 
assistance pursuant to 4 VAC 25-130-795.9.'' Also, the phrase 
``laboratory services performed pursuant to this Part'' is changed to 
read ``services rendered.''
    Subdivision 795.12(a)(2) is amended to change the 100,000 ton limit 
to 300,000 tons. This provision is also amended to provide that the 
tonnage will be determined during the 12 months immediately following 
the date on which the operator is issued the surface coal mining and 
reclamation permit. Prior to this change, the tonnage was determined 
during any consecutive 12-month period either during the term of the 
permit for which assistance is provided or during the first 5 years 
after issuance of the permit whichever is shorter.
    Subdivision 795.12(a)(3) is amended to change the 100,000 ton limit 
to 300,000 tons. This provision is also amended to provide that if the 
mining rights granted under the permit are sold, transferred or 
assigned to another person, the tonnage will be determined during the 
12 months immediately following the date on which the permit was 
originally issued. Prior to this change, the tonnage was determined 
during any 12-month period of the remaining term of the permit.
    Subdivisions 4 VAC 25-130-795.12(b) and (c) are deleted. 
Subdivision 795.12(b) concerned the submission of notarized production 
reports. Subdivision 795.12(c) defined the term ``attributed 
production.''

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), we are now 
seeking your comments on whether the amendments proposed by Virginia 
satisfy the applicable program approval criteria of 30 CFR 732.15. If 
we determine that the amendments are adequate, they will become part of 
the Virginia program.

Written Comments

    Your written comments should be specific, pertain only to the 
issues proposed in this rulemaking, and include explanations in support 
of your recommendations. If your comments are received after the time 
indicated under DATES or at locations other than the Big Stone Gap 
Field Office, we will not necessarily consider them in the final 
rulemaking or include them in the Administrative Record.

Public Hearing

    If you wish to comment at the public hearing, you should contact 
the person listed above under FOR FURTHER INFORMATION CONTACT by close 
of business on September 7, 1999. If no one requests an opportunity to 
comment at a public hearing, we will not hold a hearing.
    We request that you file a written statement at the time of the 
hearing, because it will greatly assist the transcriber. If you submit 
a written statement to OSM before the hearing, it will allow us to 
prepare adequate responses and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to comment have been heard. Persons in the audience 
who have not been scheduled to comment, and who wish to do so, will be 
heard following those scheduled. The hearing will end after all persons 
scheduled to comment and persons present in the audience who wish to 
comment have been heard.

Public Meeting

    If only one person requests an opportunity to comment at a hearing, 
a public meeting, rather than a public hearing, may be held. If you 
wish to meet with us to discuss the proposed amendments, you may 
request a meeting at the Big Stone Gap Field Office by contacting the 
person listed above under FOR FURTHER INFORMATION CONTACT. All such 
meetings will be open to the public and, if possible, notices of 
meetings will be posted in advance at the locations listed above under 
ADDRESSES. A written summary of each public meeting will be made part 
of the Administrative Record.
    If you are a disabled individual who has need for a special 
accommodation to attend a public hearing, please contact the person 
listed above under FOR FURTHER INFORMATION CONTACT.

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IV. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, 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 since each such 
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 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.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
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 has determined 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. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. 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.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 946

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 12, 1999.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 99-21643 Filed 8-19-99; 8:45 am]
BILLING CODE 4310-05-P