[Federal Register Volume 66, Number 67 (Friday, April 6, 2001)]
[Proposed Rules]
[Pages 18216-18219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8498]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 904

[SPATS No. AR-038-FOR]


Arkansas Regulatory Program

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

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

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is announcing receipt of a proposed amendment to the Arkansas 
regulatory program (Arkansas program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA). Arkansas proposes revisions and 
additions of regulations concerning definitions; areas where surface 
coal mining operations are prohibited or limited; exception for 
existing operations; procedures for compatibility findings for surface 
coal mining operations on federal lands in national forests; procedures 
for relocating or closing public roads or waiving prohibitions on 
surface coal mining operations within the buffer zone of public roads; 
procedures for waiving prohibitions on surface coal mining operations 
within the buffer zone of occupied dwellings; submission and processing 
of requests for valid existing rights determinations; director's 
obligations at time of permit application review; interpretative rule 
related to subsidence due to underground coal mining in areas 
designated by act of Congress; applicability to lands designated as 
unsuitable by Congress; exploration on land designated as unsuitable 
for surface coal mining operations; procedures: initial processing, 
recordkeeping, and notification requirements; permit requirements for 
exploration that will remove more than 250 tons of coal or that will 
occur on lands designated as unsuitable for surface coal mining 
operations; relationship to areas designated unsuitable for mining; 
protection of publicly owned parks and historic places; relocation or 
use of public roads; road systems; public notices of filing of permit 
applications; legislative public hearing; and criteria for permit 
approval or denial. Arkansas intends to revise its program to be 
consistent with the corresponding Federal regulations and at its own 
initiative to enhance enforcement of the State program.
    This document gives the times and locations that the Arkansas 
program and the proposed amendment to that program are available for 
public inspection, the comment period during which you may submit 
written comments on the amendment, and the procedures we will follow 
for the public hearing, if one is requested.

DATES: We will accept written comments until 4 p.m., c.s.t., May 7, 
2001. If requested, we will hold a public hearing on the amendment on 
May 1, 2001. We will accept requests to speak at the hearing until 4 
p.m., c.s.t. on April 23, 2001.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to Michael C. Wolfrom, Director, Tulsa 
Field Office, at the address listed below.
    You may review copies of the Arkansas program, the amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Tulsa Field Office.

Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface 
Mining, 5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6547, 
Telephone: (918) 581-6430.
Arkansas Department of Pollution Control and Ecology, Surface Mining 
and Reclamation Division, 8001 National Drive, Little Rock, Arkansas 
72219-8913, Telephone (501) 682-0744.


FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office. Telephone: (918) 581-6430. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Arkansas Program

    On November 21, 1980, the Secretary of the Interior conditionally 
approved the Arkansas program. You can find background information on 
the Arkansas program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the November 
21, 1980, Federal Register (45 FR 77003). You can find later actions on 
the Arkansas program at 30 CFR 904.10, 904.12, 904.15, and 904.16.

II. Description of the Proposed Amendment

    By letter dated March 1, 2001 (Administrative Record No. AR-
567.04), Arkansas sent us an amendment to its program under SMCRA and 
the Federal regulations at 30 CFR 732.17(b). Arkansas sent the 
amendment in response to our letter dated August 23, 2000 
(Administrative Record No. AR-567), that we sent to Arkansas under 30 
CFR 732.17(c). The amendment also includes changes made at Arkansas' 
own initiative. Arkansas proposes to amend the Arkansas Surface Coal 
Mining and Reclamation Code (ASCMRC). Below is a summary of the changes 
proposed by Arkansas. The full text of the program amendment is 
available for your inspection at the locations listed above under 
ADDRESSES.

A. Section 761.5  Definitions

    Arkansas proposes to revise the definitions of ``public 
buildings,'' and ``valid existing rights,'' and to add the definition 
of ``publicly owned park.''

B. Section 761.11  Areas Where Surface Coal Mining Operations Are 
Prohibited or Limited

    Arkansas proposes to replace the existing language in this section 
with counterpart language to 30 CFR 761.11 that describes the lands 
where surface

[[Page 18217]]

coal mining operations may not be conducted, except as provided under 
30 CFR 761.12 and 761.16.

C. Section 761.12  Exception for Existing Operations

    Arkansas proposes to replace the existing language in this section 
with the following language:

    The prohibitions and limitations of Section 761.11 do not apply 
to surface coal mining operations for which a valid permit, issued 
under Subchapter G of this chapter, exists when the land comes under 
the protection of Section 761.11. This exception applies only to 
lands within the permit area as it exists when the lands comes under 
the protection of Section 761.11.

D. Section 761.13  Procedures for Compatibility Findings for Surface 
Coal Mining Operations on Federal Lands in National Forests

    Arkansas proposes to add a new section that explains what an 
applicant must do to conduct surface coal mining operations on Federal 
lands within a national forest.

E. Section 761.14  Procedures for Relocating or Closing a Public Road 
or Waiving the Prohibition on Surface Coal Mining Operations Within the 
Buffer Zone of a Public Road

    Arkansas proposes to add a new section that explains the procedures 
an applicant must follow for relocating or closing a public road or 
waiving the prohibition on surface coal mining operations within the 
buffer zone of a public road.

F. Section 761.15  Procedures Waiving the Prohibition on Surface Coal 
Mining Operations Within the Buffer Zone of an Occupied Dwelling

    Arkansas proposes to add a new section that explains the procedures 
an applicant must follow for waiving the prohibition on surface coal 
mining operations within the buffer zone of an occupied dwelling.

G. Section 761.16  Submission and Processing of Requests for Valid 
Existing Rights Determinations

    Arkansas proposes to add a new section that explains the applicable 
definition of valid existing rights and which agency is responsible for 
making valid existing rights determinations on: (1) Federal lands 
within the areas listed at 30 CFR 761.11(a) and (b); and (2) all non-
Federal lands within the areas listed at 30 CFR 761.11(a) and any lands 
listed at 30 CFR 761.11(c) through (g). This new section also explains 
the procedures applicants and agencies follow for valid existing rights 
determinations.

H. Section 761.17  Director's Obligations at Time of Permit Application 
Review

    Arkansas proposes to add a new section that explains what the 
Director of the Arkansas Department of Environmental Quality or his 
authorized representative must do when an applicant submits an 
administratively complete application for: (1) a permit for a surface 
coal mining operation; or (2) a revision of the boundaries of a surface 
coal mining operation permit.

I. Section 761.200  Interpretative Rule Related to Subsidence due to 
Underground Coal Mining in Areas Designated by Act of Congress

    Arkansas proposes to add a new section that reads as follows:

    (a) Interpretation of Section 761.11 B AREAS WHERE MINING IS 
PROHIBITED OR LIMITED. Subsidence due to underground coal mining is 
not included in the definition of surface coal mining operations 
under Section 4(16) of the Act and Section 700.5 of this chapter and 
therefore is not prohibited in areas protected under Section 
26(a)(1) of the Act.

J. Section 762.14  Applicability to Lands Designated as Unsuitable by 
Congress and Section 762.15  Exploration on Land Designated as 
Unsuitable for Surface Coal Mining Operations

    Arkansas proposes to redesignate existing section 762.14 as new 
section 762.15 and to add a new section 762.14 to read as follows:

    Pursuant to appropriate petitions, lands listed in Section 
761.11 of this chapter are subject to designation as unsuitable for 
all or certain types of surface coal mining operations under this 
part and Part 764 of this chapter.

K. Section 764.15  Procedures: Initial Processing, Recordkeeping, and 
Notification Requirements

    Arkansas proposes to revise this section by replacing the reference 
to an ``informal conference'' with a reference to a ``legislative 
public hearing.''

L. Section 776.12  Permit Requirements for Exploration That Will Remove 
More Than 250 Tons of Coal or That Will Occur on Lands Designated as 
Unsuitable for Surface Coal Mining Operations

    Arkansas proposes to replace the existing language in this section. 
The proposed replacement language explains the procedures applicants 
and the Director of the Arkansas Department of Environmental Quality or 
his authorized representative must follow: (1) for a permit for 
conducting coal exploration outside a permit area during which more 
than 250 tons of coal will be removed; or (2) for a permit which will 
take place on lands designated as unsuitable for surface mining under 
Subchapter F.

M. Section 778.16  Relationship to Areas Designated Unsuitable for 
Mining

    Arkansas proposes to revise this section to include requirements 
for surface coal mining operations within 100 feet of a public road, 
and by replacing the term ``surface coal mining and reclamation 
operations'' with the term ``surface coal mining operations.''

N. Section 780.31  Protection of Publicly Owned Parks and Historic 
Places

    Arkansas proposes to change the section heading from ``Protection 
of public parks and historic places'' to ``Protection of publicly owned 
parks and historic places.'' Arkansas also proposes to revise section 
780.31(a)(2) by including a cross reference to the proposed valid 
existing rights regulations at section 761.17(d).

O. Section 780.33  Relocation or Use of Public Roads

    Arkansas proposes to revise the introductory paragraph to read as 
follows:

    Each plan shall describe, with appropriate maps and cross 
section drawings, the measures to be used to ensure that the 
interests of the public and landowners affected are protected if, 
under Section 761.14, the applicant seeks to have the Department's 
approval of

P. Section 780.37  Road Systems

    Arkansas proposes to change the section heading from 
``Transportation facilities'' to ``Road Systems.'' Arkansas also 
proposes to replace the existing language in this section with 
counterpart language to 30 CFR 780.37. The proposed language requires 
applicants to submit plans and drawings for each proposed road on a 
surface coal mining operation permit area. It also describes who is 
required to prepare and certify the plans and drawings.

Q. Section 786.11  Public Notices of Filing of Permit Applications

    At section 786.11(a)(4), Arkansas proposes to replace the reference 
to an ``informal conference'' with a reference to a ``legislative 
public hearing.'' Also, Arkansas proposes to revise section 
786.11(a)(5) to read as follows:

    (5) If an applicant seeks a permit to mine within 100 feet of 
the outside right-of-way of a public road or to relocate or close a 
public road, except where public notice and hearing

[[Page 18218]]

have previously been provided for this particular part of the road 
in accordance with Section 761.14 of this Chapter, a concise 
statement describing the public road, the particular part to be 
relocated or closed, and the duration of the relocation or closing.

R. Section 786.14  Legislative Public Hearing

    Arkansas proposes to revise section 786.14(c) by deleting the 
reference to section 761.12(d) and replacing it with a reference to 
section 761.14(c).

S. Section 786.19  Criteria for Permit Approval or Denial

    Arkansas proposes to revise section 786.19(d)(1) to read as 
follows:

    (1) Not within an area designated unsuitable for surface coal 
mining operations under Parts 762 and 764 of this Chapter or within 
an area subject to the prohibitions of Section 761.11 of this 
Chapter; or,

Arkansas also proposes to delete sections 786.19(d)(4) and (d)(5) and 
redesignate sections 786.19(d)(6) through (d)(8) as sections 
786.19(d)(4) through (d)(6).

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking comments 
on whether the proposed amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Arkansas program.
    Written Comments: If you submit written or electronic comments on 
the proposed rule during the 30-day comment period, they should be 
specific, should be confined to issues pertinent to the notice, and 
should explain the reason for your recommendation(s). We may not be 
able to consider or include in the Administrative Record comments 
delivered to an address other than the one listed above (see 
ADDRESSES).
    Electronic Comments: Please submit Internet comments as an ASCII, 
WordPerfect, or Word file avoiding the use of special characters and 
any form of encryption. Please also include ``Attn: SPATS NO. AR-038-
FOR'' and your name and return address in your Internet message. If you 
do not receive a confirmation that we have received your Internet 
message, contact the Tulsa Field Office at (918) 581-6430.
    Availability of Comments: Our practice is to make comments, 
including names and home addresses of respondents, available for public 
review during regular business hours at OSM's Tulsa Field Office (see 
ADDRESSES). Individual respondents may request that we withhold their 
home address from the administrative record, which we will honor to the 
extent allowable by law. There also may be circumstances in which we 
would withhold from the administrative record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.
    Public Hearing: If you wish to speak at the public hearing, contact 
the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., 
c.s.t. on April 23, 2001. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak at the public hearing, the hearing will not be 
held.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her testimony. The public 
hearing will continue on the specified date until all persons scheduled 
to speak have been heard. If you are in the audience and have not been 
scheduled to speak and wish to do so, you will be allowed to speak 
after those who have been scheduled. We will end the hearing after all 
persons scheduled to speak and persons present in the audience who wish 
to speak have been heard.
    If you are disabled and need a special accommodation to attend a 
public hearing, contact the person listed under FOR FURTHER INFORMATION 
CONTACT.
    Public Meeting: If only one person requests an opportunity to speak 
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 amendment, 
you may request a meeting by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT. All such meetings are open to the public 
and, if possible, we will post notices of meetings at the locations 
listed under ADDRESSES. We will also make a written summary of each 
meeting a part of the Administrative Record.

IV. 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).

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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 904

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 15, 2001.
Richard J. Seibel,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 01-8498 Filed 4-5-01; 8:45 am]
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