[Federal Register Volume 64, Number 247 (Monday, December 27, 1999)]
[Rules and Regulations]
[Pages 72277-72280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33464]


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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: 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 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; regulation changes at section 4 VAC 25-
130-700.5 to the definitions of ``government financed construction'' 
and ``qualified laboratory;'' and 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.

EFFECTIVE DATE: December 27, 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

[[Page 72278]]

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 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.
    We announced receipt of the proposed amendment in the August 20, 
1999, Federal Register (64 FR 45489), invited public comment, and 
provided an opportunity for a public hearing on the adequacy of the 
proposed amendment. The comment period closed on September 20, 1999. No 
one requested to speak at a public hearing, so no hearing was held.
    By letters dated October 1, 1999 (Administrative Record Number VA-
987), and October 28, 1999 (Administrative Record Number VA-993) the 
DMME submitted amendments to 4 VAC 25-130-795.11(b). We reopened the 
public comment period on November 15, 1999 (64 FR 61805), and invited 
public comment on the additional amendments. The comment period closed 
on November 30, 1999.

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 amendment. Any 
revisions that we do not specifically discuss below concern 
nonsubstantive wording changes or revised paragraph notations to 
reflect organizational changes that result from this amendment.

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 507 (c) and (h) of the 
federal act. Such assistance shall be provided in accordance with 
regulations adopted by the Director.

    We find this provision to be consistent with the Federal 
regulations at 30 CFR 795.5 which provides that a State intending to 
Administer a SOAP program under a grant from OSM may submit a grant 
application to OSM for funding of the program under the procedures of 
30 CFR part 735. Therefore, this provision can be approved.

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 when the 
construction is an approved Abandoned Mine Lands (AML) reclamation 
project under Title IV of SMCRA. 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 Federal definition of ``government financed construction'' at 
30 CFR 707.5 was amended on February 12, 1999 (64 FR 7469). 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 SMCRA. 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. We find that the revised Virginia definition is 
substantively identical to and no less effective than the counterpart 
Federal definition at 30 CFR 707.5 and can be approved.
    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. We find that this 
revised definition is substantively identical to and no less effective 
than the counterpart Federal definition at 30 CFR 795.3 and can be 
approved.
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.'' 
In effect, the ``Division'' (the DMME) is the program administrator. 
Therefore, we find that this change does not render the Virginia 
program less effective than the Federal SOAP provisions at 30 CFR Part 
795 and can be approved.
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 
and deleting language that was also deleted from the Federal rules in 
1994. In addition, at subdivisions 795.6(a)(2)(i) and (ii), the pro 
rata share is increased from 5 percent to 10 percent. We find that with 
these changes, the State provision is substantively identical to and no 
less effective than the counterpart Federal regulation at 30 CFR 
795.6(a)(2) and can be approved.
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. These deletions 
are not requirements under 30 CFR 795.7(e). We find that, as amended, 
subdivision 795.7(e) is substantively identical to and no less 
effective than the counterpart Federal regulations at 30 CFR 795.7(e) 
and can be approved.
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

[[Page 72279]]

applicant ineligible, the Division shall inform the applicant in 
writing that the application is denied and shall state the reasons for 
denial. We find that as amended, this provision is substantively 
identical to and no less effective than the counterpart Federal 
regulation at 30 CFR 795.8 and can be approved.
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.
    We find that with these changes, the State provision is 
substantively identical to and no less effective than the counterpart 
Federal provision at 30 CFR 795.9 and can be approved.
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. These 
deletions are not requirements under 30 CFR 795.10.
    We find that with these changes, the State provision is 
substantively identical to and no less effective than the counterpart 
Federal provision at 30 CFR 795.10 and can be approved.
8. 4 VAC 25-130-795.11  Assistance Funding
    In subdivision 4 VAC 25-130-795.11(b), the phrase ``is authorized 
to'' is deleted and replaced by the word ``shall.'' In effect, this 
change requires the DMME to establish a funding formula to be used for 
allocating funds to eligible small operators if the available funds are 
less than those required to provide the services pursuant to 4 VAC 25-
130-795. We find that, as amended, this provision is substantively 
identical to and no less effective than the Federal regulations at 30 
CFR 795.11(b) and can be approved.
    In addition, Virginia submitted the funding formula it intends to 
use if the available funds are less than those required to provide the 
services pursuant to 4 VAC 25-130-795. Virginia stated that ``[s]hould 
available funds ever be insufficient to provide all requested and 
appropriate assistance to eligible small operators, DMME will provide 
services on a first come, first serve basis. The funds will be used in 
order of the application dates for the requested assistance.''
    The State's funding formula is ``an equitable distribution of 
Federal funds if such funds are insufficient to provide services for 
all eligible operators.'' 48 FR 2261, 2271 (January 18, 1983). Thus, we 
find that the formula is consistent with the Federal regulations at 30 
CFR 795.11(b) and can be approved.
9. 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. The 
deleted language was also deleted from the Federal regulations in 1994.
    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.'' These deleted subsections are not requirements under 30 
CFR 795.12.
    We find that with these changes, the State provision addresses all 
the provisions of and is no less effective than 30 CFR 795.12 and 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 
stated that the amendments are appropriate and there appears to be no 
conflict with MSHA regulations.

Public Comments

    We solicited public comments on the amendment. No comments were 
received.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written

[[Page 72280]]

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 amendments that Virginia proposed pertain to air or 
water quality standards. Therefore, EPA's concurrence with the proposed 
amendment is not necessary.
    Pursuant to 732.17(h)(11)(I), we solicited comments on the proposed 
amendment from EPA. The EPA did not provide any comments.

V. Director's Decision

    Based on the above findings, we approve the amendments submitted by 
Virginia on August 2, 1999, and amended on October 1 and October 28, 
1999.
    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: December 15, 1999.
H. Vann Weaver,
Acting 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:

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     Date of final publication              Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
August 2, 1999..........................  December 27, 1999..........  Statute: 45.1-235 C of the Code of
                                                                        Virginia. Regulations: 4 VAC 25-130-
                                                                        700.5; 795.1; 795.6(a)(2); 795.7(e)(2)
                                                                        [deleted], and (e)(5) [deleted];
                                                                        795.8(a) and (b); 795.9(a), (b)(1)
                                                                        through (b)(6); 795.10(a)(5), (b), (c)
                                                                        [deleted] and (d) [deleted]; 795.11(b);
                                                                        795.12(a), (a)(2), (a)(3), (b)
                                                                        [deleted], and (c) [deleted].
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[FR Doc. 99-33464 Filed 12-23-99; 8:45 am]
BILLING CODE 4310-05-P