[Federal Register Volume 65, Number 121 (Thursday, June 22, 2000)]
[Rules and Regulations]
[Pages 38724-38728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15835]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 901

[SPATS No. AL-069-FOR]


Alabama Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving an amendment to the Alabama regulatory program (Alabama 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). Alabama proposed revisions to and additions of regulations 
concerning removal of coal incidental to government-financed 
construction and the suitability of topsoil substitutes or supplements. 
Alabama also corrected citation references. Alabama intends to revise 
its program to be consistent with the corresponding Federal 
regulations.

EFFECTIVE DATE: June 22, 2000.

FOR FURTHER INFORMATION CONTACT: Arthur W. Abbs, Director, Birmingham 
Field Office, Office of Surface Mining, 135 Gemini Circle, Suite 215, 
Homewood, Alabama 35209. Telephone: (205) 290-7282. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:   

I. Background on the Alabama 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 Alabama Program

    On May 20, 1982, the Secretary of the Interior conditionally 
approved the Alabama program. You can find background information on 
the Alabama program, including the Secretary's findings, the 
disposition of comments,

[[Page 38725]]

and the conditions of approval in the May 20, 1982, Federal Register 
(47 FR 22062). You can find later actions on the Alabama program at 30 
CFR 901.15 and 901.16.

II. Submission of the Amendment

    By letter dated April 11, 2000 (Administrative Record No. AL-0631), 
Alabama sent us an amendment to its program under SMCRA and the Federal 
regulations at 30 CFR 732.17(b). Alabama sent the amendment in response 
to our letters dated January 13, 1998, and October 15, 1998 
(Administrative Record Nos. AL-0577 and AL-0587 respectively), that we 
sent to Alabama under 30 CFR 732.17(c). The amendment also includes 
changes made at Alabama's own initiative. Alabama proposes to amend the 
Alabama Surface Mining Commission (ASMC) rules.
    We announced receipt of the amendment in the April 26, 2000, 
Federal Register (65 FR 24433). 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. The public comment period 
closed on May 26, 2000. Because no one requested a public hearing or 
meeting, we did not hold one.

III. Director's Findings

    Following, under SMCRA and the Federal regulations at 30 CFR 732.15 
and 732.17, are the Director's findings concerning the amendment to the 
Alabama program.

A. 880-X-2A-.06, Definitions

    1. Alabama revised the definition of ``government-finance 
construction'' to read as follows:

    Government-finance 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 
Surface Mining Control and Reclamation Act, 30 U.S.C. 1201 et seq., 
as amended. 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 revised definition is substantively the same as the Federal 
definition of ``government-financed construction'' found at 30 CFR 
707.5. Therefore, we find that Alabama's definition is no less 
effective than the Federal definition, and we are approving it.
    2. In our letter dated October 15, 1998, we notified Alabama that 
its definitions of ``material damage'' and ``occupied residential 
dwelling and structures related thereto'' contained citation reference 
errors. Alabama corrected the definitions by removing a reference to 
880-X-8I-.20 and adding a reference to 880-X-8I-.10. We find that the 
revised citation references are consistent with the citation references 
in the counterpart Federal definitions, and we are approving the 
revisions.

B. 880-X-2D-.04, Applicability

    Alabama added language to Rule 880-X-2D-.04(1) to provide that with 
the exception of the requirements of Rule 880-X-2D-.06, if applicable, 
coal extraction which is incidental to government-financed construction 
is exempt from the Alabama Surface Mining Control and Reclamation Act 
and its implementing regulations.
    As discussed below in finding C, Alabama's proposed exception to 
the exemption under Subchapter 880-X-2D would be applicable for coal 
removal incidental to government-financed construction where funding 
for the project is less than 50 percent and the construction is 
undertaken as an approved project under Title IV of SMCRA. 
Specifically, Rule 880-X-2D-.06 provides additional requirements for 
such coal removal when it is undertaken as part of a project under 
Alabama's approved Abandoned Mine Land Reclamation Program. Although 
the Federal regulations at 30 CFR Part 707 do not contain this 
exception language, the Federal regulations at 30 CFR Part 874 were 
revised to provide additional requirements for coal removal incident to 
AML projects receiving less than 50 percent government funding. 
Therefore, we find that the addition of the new exception language will 
not make Rule 880-X-2D-.04(1) less effective than the counterpart 
Federal regulation at 30 CFR 707.11(a).

C. 880-X-2D-.06, Additional Requirements for Coal Removal Incidental to 
Abandoned Mine Land Projects

    Alabama proposes to add this new rule to provide additional 
requirements that apply to coal removal incidental to AML reclamation 
projects. The requirements of this rule apply to coal removal 
incidental to government-financed construction where funding for the 
project is less than 50 percent and the construction is undertaken as 
an approved reclamation project under Title IV of SMCRA. Paragraph (1) 
requires the AML contractor and any subcontractor involved in the 
removal of coal from, or processing of coal on, the project site to 
obtain or possess a valid license under Chapter 880-X-6 of Alabama's 
regulations. Paragraph (2) requires the AML contractor to identify the 
prospective purchasers or end users of all coal that he or she will 
extract under the project before the ASMC can grant concurrence under 
the Federal regulations at 30 CFR 874.17. Paragraph (3) requires the 
AML contractor to maintain records of the exact tonnage of coal 
removed, as well as the names and addresses of all purchasers or end 
users of the coal at the project site. The AML contractor must make 
these records available to the ASMC upon request. Paragraph (4) 
provides that this exemption applies only to coal located within the 
boundaries of the approved construction project. In addition, removal 
of the coal must be necessary to achieve the objectives of the AML 
reclamation project. Paragraph (5) provides that both the Alabama 
Department of Industrial Relations and the ASMC must approve the 
project in accordance with the provisions of the Federal regulations at 
30 CFR 874.17 before the AML contractor can remove coal under 
Subchapter 880-X-2D. Finally, paragraph (6) provides that all coal 
removal under this exemption must be under the direct supervision of 
the AML contractor. The AML contractor is liable for any violations of 
these regulations.
    This new rule establishes the conditions under which ASMC, as the 
Title V regulatory authority, will approve an exemption for the removal 
of coal incidental to performance of a government-financed construction 
project where government funding for the project is less than 50 
percent and the construction in undertaken as an approved AML 
reclamation project under Alabama's approved Abandoned Mine Land 
Reclamation Program. There are no counterparts in the Federal 
regulations at 30 CFR Part 707 for the additional requirements proposed 
at Rule 880-X-2D-.06. However, the requirements are not inconsistent 
with the provisions in 30 CFR Part 707. Also, Alabama's proposed 
regulation at paragraph (5) ensures the ASMC and the Alabama AML 
agency's actions are consistent with the Federal regulations at 30 CFR 
874.17, which provide AML agency procedures for coal removal incident 
to reclamation projects receiving less than 50 percent government 
funding. The Federal regulation at 30 CFR 874.17(a) requires the AML 
agency to make specific determinations in consultation with the Title V 
regulatory authority. The Federal regulation at 30 CFR 874.17(b) 
requires the AML agency to concur with the Title

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V regulatory authority in specific determinations before proceeding 
with an AML reclamation project that involves coal removal incident to 
government-financed construction with less than 50 percent government 
financing. These consultations and concurrences are intended to ensure 
the appropriateness of the project being undertaken as a Title IV AML 
project and not under the Title V regulatory program. Therefore, we are 
approving Alabama's new regulation at Rule 880-X-2D-.06.

D. 880-X-8I-.08(2)(d), Reclamation Plan: General Requirements; Topsoil

    In response to our letter dated January 13, 1998, Alabama added two 
additional sentences to Rule 880-X-8I-.08(2)(d). The revised regulation 
reads as follows:

    A plan for removal, storage, and redistribution of topsoil, 
subsoil and other material to meet the requirements of Rules 880-X-
10D-.07--880-X-10D-.11. A demonstration of the suitability of 
topsoil substitutes or supplements shall be based upon analysis of 
the thickness of soil horizons, total depth, texture, percent coarse 
fragments, pH, and areal extent of the different kinds of soils. The 
regulatory authority may require other chemical and physical 
analyses, field-site trials, or greenhouse tests if determined to be 
necessary or desirable to demonstrate the suitability of the topsoil 
substitutes or supplements.

    Alabama's revised regulation at Rule 880-X-8I-.08(2)(d) is 
substantively the same as the counterpart Federal regulation at 30 CFR 
784.13(b)(4), and we are approving it.

E. 880-X-8I-.10, Subsidence Control Plan

    In our letter dated October 15, 1998, we notified Alabama that its 
regulation at 880-X-8I-.10(2)(h) contained a citation reference error. 
Alabama corrected its regulation by removing a reference to 880-X-
10D-.12(10) and adding a reference to 880-X-10D-12(9). We find that the 
revised citation reference is consistent with the citation reference in 
the counterpart Federal regulation, and we are approving the revision.

IV. Summary and Disposition of Comments

Federal Agency Comments

    On April 14, 2000, under section 503(b) of SMCRA and 30 CFR 
732.17(h)(11)(i) of the Federal regulations, we requested comments on 
the amendment from various Federal agencies with an actual or potential 
interest in the Alabama program (Administrative Record No. AL-0633). By 
letter dated May 2, 2000 (Administrative Record No. AL-0638), the Mine 
Safety and Health Administration responded that it had no comments on 
the proposal.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the 
written concurrence of the 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 the EPA for its 
concurrence.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record No. AL-0633). 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 April 14, 2000, we requested comments on Alabama's 
amendment (Administrative Record No. AL-0633). By letter dated May 17, 
2000 (Administrative Record No. AL-0639), the Alabama Historical 
Commission (AHC) provided the following comments for our consideration:
    1. The AHC commented that Alabama's regulation at 880-X-2D-.04(1) 
appears to state that coal extraction is exempt from these regulations 
and asked us to clarify Alabama's provision. The AHC thought that this 
statement appeared to be contrary to Section 106 of the National 
Historic Preservation Act of 1966.
    Response: The exemption for extraction of coal which is incidental 
to Federal, State, or local government-financed highway or other 
construction is authorized by section 528(2) of SMCRA. Alabama's 
existing regulations at Subchapter 880-X-2D exempt the extraction of 
coal which is incidental to Federal, State, or local government-
financed highway or other construction from the State Act and Alabama's 
regulations when that construction meets specified criteria. Alabama's 
current regulations limit the exemption to those construction projects 
that are funded 50 percent or more by a government agency. As discussed 
in finding A.1, the proposed revision extends the exemption to 
government funding at less than 50 percent if the construction is 
undertaken as an approved reclamation project under Title IV of SMCRA. 
As discussed in finding B, Alabama revised its applicability regulation 
at 880-X-2D-.04(1) to specify additional criteria that would apply to 
coal extraction under the new exemption. Alabama's proposed regulations 
at Subchapter 880-X-2D are no less effective than the Federal 
regulations at 30 CFR Part 707.
    Compliance with Section 106 is not jeopardized by the proposed 
revision because it requires that, for coal extraction with less than 
50 percent government funding to be exempt from the State Act and 
regulations, it must be included as an integral part of an approved 
abandoned mine land reclamation project that is administered by the 
State Abandoned Mine Land (AML) Reclamation Program. State AML Programs 
are required to comply with the requirements of Section 106 for all 
reclamation projects. The Alabama Historical Commission will be 
consulted prior to any coal extraction activities authorized under 
Alabama's proposed revision because such consultation is required by 
the Office of Surface Mining as part of the National Environmental 
Policy Act (NEPA) review of all AML reclamation projects.
    2. AHC commented that historical and archaeological should be added 
to the definition of a ``person having an interest which is or may be 
adversely affected * * * . ''
    Response: Alabama is not proposing to revise this previously 
approved definition. Also, Alabama's definition is substantively 
identical to the Federal definition at 30 CFR 700.5. However, a copy of 
your comments will be forwarded to Alabama for consideration in a 
future rulemaking.
    3. The AHC provided the following additional comments:

    Cultural resource consultation should be required when 
activities will affect previously undisturbed areas. This should 
include any undisturbed areas impacted during reclamation projects.
    The Alabama Historical Commission should be consulted if human 
remains or historic cemeteries are known or expected to be in the 
area of effect, in accordance with the Alabama Burial Act.

    Response: Alabama is not proposing any revisions to its regulations 
concerning the consideration that must be given to historic properties, 
cultural resources, or cemeteries. Also, Alabama's currently approved 
regulations require coordination with requirements under other laws, 
including the National Historic Preservation Act of 1966. However, a

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copy of your comments will be forwarded to Alabama for consideration in 
a future rulemaking.

Public Comments

    We asked for public comments on the amendment, but did not receive 
any.

V. Director's Decision

    Based on the above findings, we approve the amendment as sent to us 
by Alabama on April 11, 2000. We approve the rules that Alabama 
proposed with the provision that they be published in identical form to 
the rules sent to and reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 901, which codify decisions concerning the Alabama 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage Alabama 
to bring its program into conformity with the Federal standards. SMCRA 
requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12630--Takings

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

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 under SMCRA.

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, 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 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

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget 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.

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.
    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 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 901

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: June 6, 2000.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.

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

PART 901--ALABAMA

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

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

    2. Section 901.15 is amended in the table by adding a new entry 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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   Original amendment submission date      Date of final publication              Citation/description
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*                  *                  *                  *                  *                  *
                                                        *
April 11, 2000..........................  June 22, 2000..............  880-X-2A-.06; 880-X-2D-.04(1) and .06;
                                                                        880-X-8I-.08(2)(d); 880-X-8I-.10(2)(h).
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[FR Doc. 00-15835 Filed 6-21-00; 8:45 am]
BILLING CODE 4310-05-P