[Federal Register Volume 64, Number 238 (Monday, December 13, 1999)]
[Rules and Regulations]
[Pages 69399-69402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32210]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-113-FOR]


Virginia Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving an amendment to the Virginia permanent 
regulatory program (hereinafter referred to as the Virginia program) 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
The amendment provides clarification of an existing State policy 
directive concerning permit revisions. The amendment is intended to 
improve the operational efficiency of the State program.

EFFECTIVE DATE: December 13, 1999.

FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big 
Stone Gap Field Office, Office of Surface Mining Reclamation and 
Enforcement, 1941 Neeley Road, Suite 201, Compartment 116, Big Stone 
Gap, Virginia 24219, Telephone: (540) 523-4303.

SUPPLEMENTARY INFORMATION:

I. Background on the Virginia Program.
II. Submission of the Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.

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 on conditions of approval and program amendments at 30 CFR 
946.11, 946.12, 946.13, 946.15, and 946.16.

II. Submission of the Amendment

    By letter dated November 17, 1998 (Administrative Record No. VA-
959), the Virginia Department of Mines, Minerals and Energy (DMME) 
submitted a clarification dated September 18, 1998, to its existing 
policy guidelines concerning the applicable information and procedural 
standards for permit revisions. The Virginia regulations at 4VAC 25-
130-774.13(b)(2) require the Virginia Division of Mined Land 
Reclamation to establish such guidelines.
    We announced receipt of the proposed amendment in the December 23, 
1998, Federal Register (63 FR 71047), invited public comment, and 
provided an opportunity for a public hearing on the adequacy of the 
proposed amendment. The comment period closed on January 22, 1999. No 
one requested to speak at a public hearing, so no hearing was held.

III. Director's Findings

    Following, according to SMCRA and the Federal regulations at 30 CFR 
732.15 and 732.17, are our findings concerning the proposed amendment.
    The clarification to the Virginia program is as follows:
    The following information provides guidance to improve consistency 
and to enable you to properly plan for any addition of acreage to your 
permit. The Virginia law and regulation dealing with such additions 
conform to the federal definitions.
    The Virginia Regulation at 4 VAC 25-130-774.13(d) requires:

    Request to change permit boundary. Any extension to the area 
covered by the permit, except incidental boundary revisions, shall 
be made by application for a new permit.

    Consistent with this regulation, any request for a non-incidental 
extension to the area covered by an existing permit shall be made by 
application for a new permit using the Division's permit application 
forms DMLR-PT-034e, DMLR-PT-034p, DMLR-PT-034o. It should be noted that 
these new forms are the same forms that the Division will use to 
implement Electronic Permitting in a few months. Implementing usage of 
these forms at this time will be a precursor to Electronic Permitting 
and will allow permittees to become familiar with the format of what 
will be required for Electronic Permitting. Permittees may use one of 
two options in submitting the application for a new permit:
    1. The application may be for a completely new permit for the 
proposed area, with a new permit number issued and new issuance, 
expiration and anniversary dates assigned; or
    2. The application may combine the existing permit area with the 
proposed additional area. The permit number would remain the same, as 
well as the permit issuance, expiration and anniversary date. This 
application may reference any applicable parts of the previously 
approved permit plans (with copies of the relevant sections included), 
but it shall provide all the information necessary for a new permit on 
the proposed additional area. This new information shall also include 
any portions of the plans for the previously approved permit area, if 
they are affected by the addition of the new area and shall be revised. 
The application will be processed as a new permit application.
    With these two options, the applicant retains the discretion to 
apply for a separate and distinct permit for the new area, resulting in 
two separate permits with different permit numbers or to retain the 
existing permit number. However, when DMLR finds the new area is not a 
functional extension of the existing permit, but rather a separate 
operation, the Division may require an application for a separate 
permit.
    Incidental boundary revisions (IBR) include only minor changes to 
permit boundaries that are incidental to the approved operations; such 
as road alignment, drainage alignment, parking areas, additional 
entries/punch-outs for underground operations, or other non-coal 
removal functions necessary for the orderly and continuous conduct of 
the approved operation.
    A proposal to increase the area available for coal removal will not 
be treated as an IBR unless the coal removal is incidental to the 
primary purpose of the revision. For example, if the realignment of a 
road also involved mining a small amount of coal in the

[[Page 69400]]

road cut, and/or the increase in area is minor then it may be deemed an 
IBR. The Division may also approve small adjustments to the permit 
boundary as an IBR when there is no net increase in the permitted area.
    The Federal regulations concerning requests to change permit 
boundaries occur at 30 CFR 774.13--Permit revisions. 30 CFR 774.13(d) 
provides the following: ``Request to change permit boundary. Any 
extensions to the area covered by the permit, except incidental 
boundary revisions, shall be made by application for a new permit. The 
Virginia regulations at 4 VAC 25-130-774.13(d) mirror the Federal 
requirement.
    The Virginia amendment does not alter the requirement to make 
application for a new permit for all boundary revisions, except 
incidental boundary revisions. The amendment identifies the permit 
application forms to be used, and indicates that the forms will also be 
used with future applications under Electronic Permitting. The 
amendment further identifies two options permittees may use in 
submitting the application for a new permit. There are no direct 
counterparts to these policy guidelines in the Federal regulations at 
30 CFR 774.13(d) concerning requests to change permit boundaries. We 
find, however, that the policy guidance does not change the 
requirements for a new permit (information, public notice and hearing 
opportunities) that revisions, except for incidental boundary 
revisions, must meet. Therefore, the guidance is consistent with the 
Federal regulations at 30 CFR 774.13(d), and can be approved.
    The State policy guidance also addresses incidental boundary 
revisions (IBR). The Federal regulations provide no specific guidance 
on IBR's, nor do they define the term ``incidental.'' Thus, the scale 
and extent of incidental boundary revisions is left to the State 
regulatory authority to incorporate into the State program. 
Classification as an incidental boundary revision still requires review 
and evaluation by the State. In 1986 (51 FR 42548), we approved 
Virginia's guidelines for identifying significant and minor permit 
revisions. The current amendment adds to, but does not replace, those 
guidelines. In cases where coal removal is involved, we believe that to 
be consistent with 30 CFR 774.13(d), coal removal cannot be the primary 
purpose of an IBR. The Virginia policy requires that coal removal must 
be incidental to the primary purpose of the IBR.
    We find that the State's policy concerning IBR's does not render 
the Virginia program less effective than 30 CFR 774.13(d), that 
Virginia has reasonably exercised its discretion, and that the policy 
is not inconsistent with SMCRA and the Federal regulations. Therefore, 
the policy can be approved.

IV. Summary and Disposition of Comments

Federal Agency Comments

    According to 30 CFR 732.17(h)(11)(i), we solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the Virginia program. The U.S. Department of 
Labor, Mine Safety and Health Administration (MSHA) responded and said 
that there appears to be no conflict with MSHA regulations and/or 
procedures and that the amendment is deemed appropriate.
    The U.S. Department of Agriculture, Natural Resources Conservation 
Service (NRCS) responded and concluded that its position is that the 
amendment should be approved. The NRCS also stated that the definition 
of ``incidental boundary revision'' is somewhat arbitrary, and that a 
more definable limit between a boundary revision that is incidental and 
the need to seek a new or revised permit may be needed. The Federal 
regulations at 30 CFR 774.13(d) provide that any extensions to the area 
covered by the permit, except incidental boundary revisions, shall be 
made by application for a new permit.
    The Federal regulations do not define the term ``incidental 
boundary revision.'' Therefore, it is each State's obligation to 
determine when a boundary revision is significant and when it is 
incidental.
    4 VAC 25-130-774.13(b)(2) require the DMME to establish guidelines 
for identifying the scale or extent of permit revisions that would 
require an application for a new permit. By letter dated August 14, 
1986, Virginia submitted a listing of the circumstances under which a 
revision would be considered significant (and which are subjected to 
the entire permit information, notice, and participation requirements) 
and those under which it would be considered minor. We reviewed and 
then approved Virginia's listing on November 25, 1986 (51 FR 42548). 
The current submittal is intended to further clarify the 1986 listing.
    The U.S. Fish and Wildlife Service (USFWS) responded to the current 
submittal and stated that to minimize impacts to listed species or 
habitat, whenever a revision is determined to be an IBR, an assessment 
should be completed to identify any threats to protected species. These 
findings should then be presented to the USFWS for final determination 
to insure such action will not adversely affect Federally listed 
species or designated critical habitat.
    We asked the DMME to respond to the USFWS comments. DMME stated 
that Virginia makes the requested assessment and findings. These 
assessments and findings are made prior to the issuance of the initial 
permit (4 VAC 25-130-773.15(c)(10) and 25-130-780.16). These findings 
are then reviewed halfway through the permit term (4 VAC 25-130-
774.11), during the quarterly on-site inspections (4 VAC 25-130-840.11) 
and if there is any permit renewal (4 VAC 25-130-773.15(c)(10). 
Additionally, certain permit revisions including permit boundary 
revisions may require notice and participation by governmental 
entities. DMME stated that permit revisions are divided into four 
classifications: (1) Significant revisions which are subjected to the 
entire permit information, notice, and participation requirements; (2) 
minor revisions which by definition do not affect the conditions or 
have impacts that were not considered or addressed in the initial 
assessment and findings [minor revisions must still contain sufficient 
information to establish their inconsequential nature]; (3) incidental 
boundary revisions and (4) significant boundary revisions. Only those 
boundary revisions that qualify as an IBR pursuant to the 1998 
guidelines and qualify as a minor revision pursuant to the 1986 
guidelines will be exempted from the notice and participation 
standards. Thus we agree that Virginia's existing requirements satisfy 
USFWS' request.
    Nonetheless, we asked the USFWS to comment on the DMME response. 
The USFWS stated that the terms, conditions and findings for individual 
Virginia program permits may fall short of providing adequate 
protection to all Federally listed species. As an example, the USFWS 
stated that it has noticed during permit reviews that the ecological 
information provided in permit applications is altogether inadequate to 
substantiate risk to threatened and endangered resources. This 
uncertainty, the USFWS stated, hinders reviewers, such as the USFWS or 
the DMLR, in their obligation to develop appropriate terms and 
conditions to prevent resource injury. The USFWS recommended the 
following changes to alleviate the uncertainty it sees in the 
permitting process.
    First, the USFWS recommended that standardized biological reporting 
and

[[Page 69401]]

monitoring guidelines should be developed, approved and implemented for 
all permit applications. The USFWS stated that it has encouraged the 
State to develop fish and wildlife reporting and monitoring guidelines 
and has offered to assist in this endeavor. It appears from its 
comments above, that the USFWS is more concerned with the general level 
of actual reporting and monitoring of biological information that is 
provided in all Virginia permit applications, than it is with the 
written guidelines established for IBR's. This amendment only concerns 
guidelines for IBR's, thus, USFWS' recommendation is beyond the scope 
of this amendment. Also, our oversight of the Virginia program has not 
identified such a problem. However, we will look into USFWS' 
allegations. We encourage the USFWS and the DMME to work together to 
address the USFWS concerns.
    Second, the USFWS recommended that a numeric (acreage) condition be 
set that would define the extent and scale of IBR's. This would prevent 
areas of several hundred acres from being included as an IBR or 
considered a minor revision of an inconsequential nature and excluded 
from any agency review process. As we discussed above in the finding, 
we believe that the State has adequately shown that the proposed 
amendment is consistent with and no less effective than the Federal 
regulations. The Federal regulations do not define the term 
``incidental'' nor does OSM's only directive on IBR's. See, 
``Incidental Boundary Revisions'' (REG-19). Therefore, the Virginia 
program is not less effective than the Federal regulations because it 
does not contain an acreage standard. However, we do not discourage the 
development of such a standard.
    It is our opinion that the proposed amendment does not lessen the 
effectiveness of the Virginia program. It is also our opinion that our 
approval of this amendment is not likely to jeopardize the continued 
existence of any Federally listed, threatened or endangered species or 
result in the destruction or adverse modification of designated 
critical habitat. Consequently, we are approving the proposed 
amendment.

Public Comments

    We solicited public comments on the amendment. The Virginia 
Department of Historic Resources responded and stated that the 
amendment will not affect historic properties and it has no objection 
to the amendment.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to any provisions of the 
State program amendment that relate to air or water quality standards 
promulgated 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 Virginia proposed pertain to air or water 
quality standards. However, OSM requested EPA's comments on the 
proposed amendment. EPA did not provide any comments.

V. Director's Decision

    Based on the above findings, we approve the amendment submitted by 
Virginia on November 17, 1998, that clarifies the informational and 
procedural requirements for permit revisions that propose to change an 
existing permit boundary.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 946 which codifies decisions concerning the Virginia 
program. We are making this final rule effective immediately to 
expedite the State program amendment process, and to encourage Virginia 
to bring its program into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. 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: November 29, 1999.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

[[Page 69402]]

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:


Sec. 946.15  Approval of Virginia regulatory program amendments.

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------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
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*                  *                  *                  *
                  *                  *                  *
November 17, 1998.............  December 13, 1999  Policy clarification
                                                    for implementing 4
                                                    VAC 25-130-
                                                    774.13(d).
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[FR Doc. 99-32210 Filed 12-10-99; 8:45 am]
BILLING CODE 4310-05-P