[Federal Register Volume 67, Number 232 (Tuesday, December 3, 2002)]
[Rules and Regulations]
[Pages 71826-71832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30607]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 924

[MS-017-FOR]


Mississippi Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving an amendment to the Mississippi regulatory program 
(Mississippi program) under the Surface Mining Control and Reclamation 
Act of 1977 (SMCRA). Mississippi proposed revisions to and additions of 
rules about valid existing rights, roads, formal review of citations, 
and revegetation success standards. Mississippi intends to revise its 
program to be consistent with the corresponding Federal regulations and 
to improve operational efficiency.

EFFECTIVE DATE: December 3, 2002.

FOR FURTHER INFORMATION CONTACT: Arthur W. Abbs, Director, Birmingham 
Field Office. Telephone: (205) 290-7282. Internet: [email protected].

SUPPLEMENTARY INFORMATION: 

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

I. Background on the Mississippi Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``* * * a State law 
which provides for the regulation of surface coal mining and 
reclamation operations in accordance with the requirements of the Act * 
* *; and rules and regulations consistent with regulations issued by 
the Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). 
On the basis of these criteria, the Secretary of the Interior approved 
the Mississippi program on September 4, 1980. You can find background 
information on the Mississippi program, including the Secretary's 
findings and the disposition of comments, in the September 4, 1980, 
Federal Register (45 FR 58520). You can find later actions on the 
Mississippi program at 30 CFR 924.10, 924.15, 924.16, and 924.17.

II. Submission of the Amendment

    By letter dated September 28, 2001 (Administrative Record No. MS-
0388), Mississippi sent us an amendment to its program under SMCRA and 
the Federal regulations at 30 CFR 732.17(b). Mississippi sent the 
amendment in response to our letters dated August 17, 2000, and August 
23, 2000 (Administrative Record Nos. MS-0382 and MS-0381, 
respectively), that we

[[Page 71827]]

sent to Mississippi in accordance with 30 CFR 732.17(c). Mississippi 
also sent the amendment in response to required program amendments at 
30 CFR 924.16(i) and (l). Finally, the amendment included changes made 
at Mississippi's own initiative.
    We announced receipt of the proposed amendment in the November 2, 
2001, Federal Register (66 FR 55611). 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 December 3, 2001. Because no one requested a public 
hearing or meeting, we did not hold one. We received comments from one 
State agency.
    During our review of the amendment, we identified concerns relating 
to the definition of ``immediate mining area'' and provisions 
concerning limited use vehicular pathways. We notified Mississippi of 
these concerns by letter dated January 23, 2002 (Administrative Record 
No. MS-0390). By letter dated July 22, 2002, Mississippi sent us a 
revised amendment (Administrative Record No. MS-0394). Based upon 
Mississippi's revisions to its amendment, we reopened the public 
comment period in the September 6, 2002, Federal Register (67 FR 
56967). The public comment period closed on September 23, 2002. We did 
not receive any comments.
    Also during our review, we identified editorial concerns relating 
to Mississippi's revegetation success standards. We notified 
Mississippi of these concerns by telephone on September 10, 2002 
(Administrative Record No. MS-0398). By letter dated September 12, 
2002, Mississippi sent us revisions to its amendment (Administrative 
Record No. MS-0397). Because the revisions merely clarified certain 
provisions of Mississippi's amendment, we did not reopen the public 
comment period.

III. OSM's Findings

    Following, under SMCRA and the Federal regulations at 30 CFR 732.15 
and 732.17, are our findings concerning the amendment to the 
Mississippi program. Any revisions that we do not discuss below are 
minor wording changes, or revised cross-references and paragraph 
notations to reflect organizational changes resulting from this 
amendment.

A. Revisions to Mississippi's Rules That Are Substantively the Same as 
the Corresponding Provisions of the Federal Regulations

    The State rules listed in the table contain language that is the 
same as or similar to the corresponding sections of the Federal 
regulations. Differences between the State rules and the Federal 
regulations are minor.

------------------------------------------------------------------------
                                                     Federal counterpart
            Topic                  State rule            regulation
------------------------------------------------------------------------
Areas where mining is         Section 1105........  30 CFR 761.11
 prohibited or limited.
Submission and processing of  Section 1106........  30 CFR 761.16
 requests for valid existing
 rights determinations.
Valid existing rights review  Section 3114........  30 CFR 761.17
 at time of permit
 application review.
Permit requirements for       Section 2103(b)(14),  30 CFR
 exploration removing more     (c), (d), (e), and    772.12(b)(14), (c),
 than 250 tons of coal, or     (f).                  (d), and (e)
 occurring on lands
 designated as unsuitable
 for surface coal mining
 operations.
------------------------------------------------------------------------

    Because the above State rules are substantively the same as the 
corresponding Federal regulations, we find that they are no less 
effective than the Federal regulations.

B. Revisions to Mississippi's Rules That Are Not the Same as the 
Corresponding Provisions of the Federal Regulations

1. Section 105, Definition of ``Valid Existing Rights''
    Mississippi revised its definition of ``valid existing rights'' to 
closely follow the Federal definition at 30 CFR 761.5. However, 
Mississippi's definition of ``valid existing rights'' includes language 
in paragraph (a) specifying that valid existing rights must have been 
in existence on August 3, 1977, unless, subsequent to the adoption of 
the definition, section 53-9-71(4) of the Mississippi Surface Coal 
Mining and Reclamation Law is amended to delete that requirement. 
Mississippi's definition further provides that if section 53-9-71 of 
the Mississippi Surface Coal Mining and Reclamation Law is amended to 
delete the requirement that a right exist as of August 3, 1977, then 
the right must have been in existence at the time the land came under 
the protection of 30 CFR 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. 53-
9-71, or section 1105 of the Mississippi regulations. In a letter dated 
September 28, 2001 (Administrative Record No. MS-0388), Mississippi 
explained that section 53-9-71(4) of Mississippi's Surface Coal Mining 
and Reclamation Law provides that valid existing rights must have 
existed on or before August 3, 1977. Mississippi further explained that 
it may suggest a statutory change to the Mississippi Legislature to 
bring the state law in line with the Federal statute and regulations.
    Mississippi's definition of ``valid existing rights'' provides that 
a person claiming valid existing rights must demonstrate valid existing 
rights in the same manner required by the Federal definition at 30 CFR 
761.5, except that those rights must have existed on August 3, 1977. 
The Federal regulations require that valid existing rights must have 
existed on the date that the land came under the protection of 30 CFR 
761.11 or 30 U.S.C 1272(e)--a date that could occur on or after August 
3, 1977. Because rights that exist under the Mississippi rules would 
also exist under the Federal regulations, we find that Mississippi's 
proposed definition is no less effective than the Federal definition at 
30 CFR 761.5. Therefore, we are approving it.
2. Section 1103, Responsibility
    Mississippi revised the language in this section by adding the 
phrase, ``a valid existing rights determination made by OSM'' after the 
reference to ``30 U.S.C. 1272(e).'' Mississippi also replaced the 
phrase, ``this Chapter'' with the phrase, ``these regulations.''
    As revised, section 1103 reads as follows:

The Permit Board shall comply with Chapters 17 to 37 and determine 
whether an application for a permit must be denied because surface 
coal mining operations on those lands are prohibited or limited by 
Sec.  522(e) of SMCRA, 30 U.S.C. 1272(e), a valid existing rights 
determination made by OSM, Sec.  53-9-71, these regulations, or a 
designation of the Commission.

    The Federal regulations at 30 CFR 761.3 authorizes a State 
regulatory authority to prohibit or limit surface coal mining 
operations on or near

[[Page 71828]]

certain private, Federal, and other public lands, subject to valid 
existing rights and except for those operations which existed on August 
3, 1977. Therefore, we find that Mississippi's revisions to section 
1103 are not inconsistent with 30 CFR 761.3, and we are approving it.
3. Section 1107, Procedures
    a. At paragraph (a), Mississippi added language to require the 
Permit Board to determine whether proposed surface coal mining 
operations are limited or prohibited under section 1105 prior to the 
submission of a complete application, if the applicant requests the 
Permit Board to do so under section 1106. We find that the revision of 
this section is not inconsistent with the Federal provisions at 30 CFR 
761.16, which allow an applicant to request that the regulatory 
authority make a valid existing rights determination prior to preparing 
and submitting an application for a permit or boundary revision. 
Therefore, we are approving it.
    b. Mississippi revised the first sentence of paragraph (b) to 
provide that where a proposed operation would be located on any lands 
listed in section 1105, the Permit Board must deny the permit if the 
applicant has no valid existing rights for the area. We find that 
Mississippi's revisions are no less effective than the Federal 
provisions at 30 CFR 773.15(c)(ii), which provides that no permit 
application can be approved unless the application affirmatively 
demonstrates and the regulatory authority finds in writing that the 
proposed permit area is not within an area subject to the prohibitions 
of 30 CFR 761.11. Therefore, we are approving it.
    c. Mississippi revised paragraph (f) to provide that the Permit 
Board will follow the procedures required by section 3114(d) of 
Mississippi's rules when it determines that a proposed surface coal 
mining operation will adversely affect any publicly owned park or any 
place included in the National Register of Historic Places. Section 
3114(d) of Mississippi's rules is substantively the same as the Federal 
provisions at 30 CFR 761.17(d), which describe the procedures for joint 
approval of surface coal mining operations that will adversely affect 
publicly owned parks or historic places. Because Mississippi's revision 
merely directs the reader to the procedures found in 3114(d), we find 
that Mississippi's revision at section 1107(f) is no less effective 
than the Federal provisions at 30 CFR 761.17(d), and we are approving 
it.
    d. Finally, Mississippi removed paragraph (h), which provided that 
determinations made by the Permit Board concerning whether a person has 
valid existing rights are subject to administrative and judicial review 
under Miss. Code Ann. 53-9-77. Paragraph (h) also provided that 
determinations made by the Permit Board concerning whether surface coal 
mining operations existed on the date of enactment are subject to 
administrative and judicial review under Miss. Code Ann. 53-9-77.
    Section 1106(g) of Mississippi's revised rules provides that a 
determination that valid existing rights do or do not exist is subject 
to administrative and judicial review under section 53-9-77 of the 
Mississippi Surface Coal Mining and Reclamation Law. Therefore, we find 
that the removal of the portion of section 1107(h) concerning 
administrative and judicial review of valid existing rights 
determinations does not render the Mississippi rules less effective 
than the Federal regulations, and we are approving it.
    On December 17, 1999, we removed the portion of former 30 CFR 
761.12(h) that provided for administrative appeals of existing 
operations determinations. In the preamble, we explained that because 
the exception for existing operations in 30 CFR 761.12 does not require 
any affirmative action or decision on the part of the permittee or the 
regulatory authority, no action or decision exists to appeal (64 FR 
70804). Therefore, Mississippi's removal of the portion of section 
1107(h) concerning administrative and judicial review of existing 
operations determinations is consistent with the removal of our 
counterpart provision at former 30 CFR 761.12(h), and we are approving 
it.

C. Revisions to Mississippi's Rules With No Corresponding Federal 
Regulations

1. Section 105, Definition of ``Immediate Mining Area''
    Mississippi added a definition for ``immediate mining area'' to 
read as follows:

Immediate Mining Area--as used in the definition of Road in this 
section, means an area of mining activity or pre-mining construction 
activity covered by a construction stormwater pollution prevention 
plan or, after construction is completed, situated so that surface 
water run-off will be routed to an approved water control structure 
such as a sedimentation pond. Routes of travel within the immediate 
mining area will be either: consumed by mining; reclaimed; or have 
design plans submitted for approval as permanent postmine features 
prior to phase II bond release.

    No Federal counterpart to this definition exists. However, in the 
preamble to our November 8, 1988, Federal Register (53 FR 44356) 
concerning roads, we discussed what the phrase meant. In that 
discussion, we incorporated two concepts into the interpretation of 
``immediate mining area''--frequent changes and drainage control. 
Several commenters suggested that the term be interpreted consistent 
with drainage control since the necessary environmental protection 
would be provided and it would provide an exact meaning of the term. We 
stated that our view is in part consistent with the commenters 
concerning the exclusion of roads within the permit area for which 
drainage control is otherwise provided. We went on to explain that 
because all of the other standards of section 515 of SMCRA would also 
necessarily apply to temporary routes not considered roads, the 
protection required by section 515(b)(17) of SMCRA would still be 
achieved. However, we retained the concept of frequent changes in order 
to ensure that all roads are adequately reclaimed. We stated that all 
routes subject to frequent changes would be obliterated during the 
mining process, but routes no longer changing need to be included in 
the definition of road to ensure that they are adequately designed, 
constructed, maintained, and reclaimed. No further guidance in 
interpretation of the phrase ``frequent changes'' was provided.
    Routes of travel in large mines over relatively flat terrain, such 
as the mine in Mississippi, move as operations move, and are therefore 
subject to frequent change. We believe that, considering the nature of 
mining operations in Mississippi, it would not be unreasonable or an 
abuse of discretion for the State to consider the immediate mining area 
as matching the area where drainage control has been established 
through construction of siltation structures so long as mechanisms are 
in place to ensure that when travel routes are no longer changing, they 
are either (1) Reclaimed with vegetation established or (2) approved as 
roads as mining and reclamation operations are completed, such as by 
the time of phase II bond release. We believe that these mechanisms 
would ensure full and contemporaneous reclamation, and ensure that 
travel routes not reclaimed as part of the general reclamation of an 
area would be included in the definition of a road.

[[Page 71829]]

    By letter dated January 23, 2002 (Administrative Record No. MS-
0390), we notified Mississippi that its definition lacked the 
mechanisms to ensure that all travel routes are either reclaimed or 
approved as roads as mining and reclamation operations are completed. 
By letter dated July 22, 2002 (Administrative Record No. MS-0394), 
Mississippi sent a revision to its definition to add a provision 
requiring routes of travel within the immediate mining area to be (1) 
Consumed by mining; (2) reclaimed; or (3) have design plans submitted 
for approval as permanent postmine features prior to phase II bond 
release. Because Mississippi's definition of ``immediate mining area'' 
provides mechanisms to ensure that all travel routes are either (1) 
reclaimed with vegetation established or (2) approved as roads prior to 
phase II bond release, we find that it is not inconsistent with the 
requirements of the Federal program, and we are approving it.
2. Section 53111, Roads: General
    Mississippi added new paragraphs (a)(4) and (5) to read as follows:

    (4) A limited use vehicular pathway is not classified as a road 
if it meets all the following:
    (i) the pathway has no improved roadbed, which means it has no 
constructed crown, compacted base, roadway ditches, or surface 
material added to enhance use as a pathway which precludes 
vegetation;
    (ii) the pathway has no bridges or other cross-drainage 
structures;
    (iii) the pathway is not located in and/or does not cross or 
ford any channel of an intermittent or perennial stream;
    (iv) the pathway has only limited clearing, if any, of woody 
vegetation, typically wide enough only for the safe passage of one 
vehicle;
    (v) the pathway is located so as to control erosion and 
siltation; and
    (vi) maintenance of the pathway is limited to maintenance 
consisting only of the occasional filling of potholes and ruts in 
order to remain passable.
    (5) A limited use vehicular pathway:
    (i) shall be reclaimed with vegetation sufficient to prevent 
erosion prior to phase II bond release;
    (ii) along with the area it disturbs, is a mining related 
activity and must be covered by an appropriate reclamation bond;
    (iii) will be reclassified as a road if upgraded by construction 
activities such as blading, construction, placement of a compacted 
surface, cut and fill of the natural grade, construction of drainage 
ditches or low water crossings, or installation of drainage 
structures. The submittal and approval of plans and drawings 
required by these regulations must be completed prior to the 
upgrading of a limited use vehicular pathway.

    No Federal counterpart to these provisions exists. However, we 
recognize that in flat agricultural areas such as those that occur in 
the mining areas of Mississippi, occasional overland travel that occurs 
repeatedly in the same place will create tracks that can be called 
pathways, trails, lanes, etc., even though there has been no improved 
roadbed. We further recognize that such pathways will need occasional 
repair or maintenance to remain passable, and that such maintenance 
does not necessarily make the pathway a road. We do not believe it 
would be unreasonable or an abuse of discretion for the State to exempt 
such pathways from regulation as a ``road'' so long as the State does 
not allow the pathways to have any characteristics of ancillary or 
primary roads.
    By letter dated January 23, 2002 (Administrative Record No. MS-
0390), we notified Mississippi that its provisions at 53111(a)(4) and 
(5) could allow limited use vehicular pathways to have some 
characteristics of ancillary roads. By letter dated July 22, 2002 
(Administrative Record No. MS-0394), Mississippi revised its provisions 
at section 53111(a)(4) and (5) by removing language that would have 
allowed limited use vehicular pathways to have culverts, be located in 
and/or cross or ford channels of intermittent or perennial streams, and 
include water bars across the pathway and drainage ways incidental to 
the area. Because Mississippi's provisions at 53111(a)(4) and (5) do 
not allow limited use vehicular pathways to have any characteristics of 
ancillary or primary roads, we find that it is not inconsistent with 
the requirements of the Federal regulations, and we are approving it.

C. Section 6511, Formal Review of Citations

    Mississippi revised the first sentence of paragraph (c) to allow 
any party to a proceeding that is the result of the issuance of a 
notice of violation or cessation order to apply to the Commission for 
temporary relief from the notice or cessation order.
    Mississippi's revision at section 6511(c) is substantively the same 
as the Federal regulation at 30 CFR 4.1261. Further, the revision 
satisfies the requirements placed on the Mississippi program at 30 CFR 
924.16(l). Therefore, we are approving Mississippi's revision and 
removing the required program amendment at 30 CFR 924.16(l).

D. Revegetation Success Guidelines

1. Section 53103, Revegetation: Standards for Success
    Mississippi redesignated paragraph (a)(1) as paragraph (b)(1); 
paragraph (b)(1) as paragraph (b)(2); paragraph (b)(2) in its entirety 
as paragraph (b)(3); and paragraph (b)(3) as new paragraph (b)(4). 
Mississippi also revised paragraph (a) to incorporate by reference a 
revegetation success guidance document titled ``Appendix A, 
Revegetation Success Standards.'' Finally, Mississippi added language 
in paragraph (a) to provide that if a postmining land use is selected 
and approved by the Permit Board for which standards are not specified 
in Appendix A, or if Appendix A does not specify a more specific 
standard of success for a postmining land use, the general standards of 
success found at redesignated paragraph (b) will apply.
    The Federal regulations at 30 CFR 816.116(a)(1) require that each 
regulatory authority select revegetation success standards and 
statistically valid sampling techniques for measuring revegetation 
success and include them in its approved regulatory program. We find 
that Mississippi's incorporation by reference of Appendix A into its 
rules at 53103(a) meets the requirements of 30 CFR 816.116(a)(1), and 
we are approving it. Further, we find that Mississippi's Appendix A 
provides success standards for the most probable types of postmining 
land use that an operator might choose. It would be highly unlikely 
that an operator would select a postmining land use that was not 
covered by Appendix A. If an operator did choose a postmining land use 
that was not covered under Appendix A, Mississippi would need to 
develop success standards for that land use and submit them to us for 
approval. Therefore, we are approving Mississippi's provision at 
section 53103(a).
2. Appendix A, Revegetation Success Standards
    Mississippi added Appendix A to describe the standards for 
revegetation success on commercial forest lands, croplands, industrial 
or commercial lands, pasture and previously mined areas, prime 
farmlands, recreation lands, residential lands, and wildlife habitats.
    The Federal regulations at 30 CFR 816.116(a)(1) require that each 
regulatory authority select revegetation success standards and 
statistically valid sampling techniques for measuring revegetation 
success and include them in its approved regulatory program.

[[Page 71830]]

Mississippi developed its revegetation success guidelines to satisfy 
this requirement. The guidelines include revegetation success standards 
and statistically valid sampling techniques for measuring revegetation 
success of reclaimed commercial forest lands, croplands, industrial or 
commercial lands, pasture and previously mined areas, recreation lands, 
residential lands, and wildlife habitats in accordance with 
Mississippi's counterparts to the Federal regulations at 30 CFR 
816.116. The guidelines also include revegetation success standards and 
statistically valid sampling techniques for restoring soil productivity 
of prime farmland soils in accordance with Mississippi's counterparts 
to the Federal regulations at 30 CFR 823.15. Mississippi's standards, 
criteria, and parameters for revegetation success reflect the extent of 
cover, species composition, and soil stabilization required in the 
Federal regulations at 30 CFR 816.111. As required by the Federal 
regulations at 30 CFR 816.116(a)(2) and (b) and 823.15, Mississippi's 
revegetation success standards include criteria representative of 
unmined lands in the area being reclaimed to evaluate the appropriate 
vegetation parameters of ground cover, production, or stocking suitable 
to the approved postmining land uses. Mississippi's guidelines specify 
the procedures and techniques to be used for sampling, measuring, and 
analyzing vegetation parameters. Ground cover, production, and stocking 
suitable to the approved postmining land uses, except prime farmland, 
are considered equal to the approved success standard when they are not 
less than 90 percent of the success standard. The average production of 
crops for prime farmland soils must equal or exceed the average 
production of the same crops for the same or similar unmined prime 
farmland soils. Sampling techniques for measuring success use a 90-
percent statistical confidence interval for all land uses. We found 
that use of these procedures and techniques will ensure consistent, 
objective collection of vegetation data.
    For the above reasons, we find that the revegetation success 
standards and statistically valid sampling techniques for measuring 
revegetation success contained in Mississippi's revegetation success 
guidelines satisfy the requirements of 30 CFR 816.116(a)(1) and 823.15. 
The guidelines also satisfy the requirement placed on the Mississippi 
program at 30 CFR 924.16(i), and we are removing it.

IV. Summary and Disposition of Comments

Public Comments

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

Federal Agency Comments

    On October 11, 2001, and July 30, 2002, under 30 CFR 
732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on 
the amendment from various Federal agencies with an actual or potential 
interest in the Mississippi program (Administrative Record Nos. MS-0395 
and MS-0396, respectively). We did not receive any comments.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a 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 
Mississippi proposed to make in this amendment pertain to air or water 
quality standards. Therefore, we did not ask the EPA for its 
concurrence.
    On October 11, 2001, and July 30, 2002, under 30 CFR 
732.17(h)(11)(i), we requested comments on the amendment from the EPA 
(Administrative Record Nos. MS-0395 and MS-0396, respectively). 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 October 11, 2001, and July 30, 2002, we requested 
comments on Mississippi's amendment (Administrative Record Nos. MS-0395 
and MS-0396, respectively). The SHPO responded on November 20, 2001 
(Administrative Record No. MS-0389). The SHPO stated that sections 
1105(c), 1106(e)(2)(ii), 1107(f), and 3114(d)(1) of Mississippi's rules 
should be modified to include any place that is eligible for the 
National Register of Historic Places as well as those that have already 
been included in the Register. Also, the SHPO stated that at section 
2103(b)(8), Mississippi should add another item to require applications 
for exploration permits to contain a statement from the SHPO that 
assesses the need for a cultural resources survey.
    On September 24, 2002 (Administrative Record No. MS-0399), we sent 
a letter to the SHPO informing them that Mississippi's rules are 
consistent with Section 522(e)(3) of SMCRA and Part 761 of the Federal 
regulations. We also explained that even though SMCRA and the Federal 
regulations do not require consideration of properties eligible for 
listing on the National Register of Historic Places when making a 
determination of whether a person has valid existing rights to mine in 
areas where surface coal mining operations are normally prohibited or 
limited, the permit application requirements of the Federal regulations 
do require this consideration for these areas. Finally, we informed the 
SHPO that Mississippi did not propose changes to section 2103(b)(8), 
and that we've previously found that Mississippi's provisions at 
section 2103(b)(8) are substantively identical, and no less effective 
than, the Federal regulations at 30 CFR 772.12(b)(8).

V. Director's Decision

    Based on the above findings, we approve the amendment Mississippi 
sent to us on September 28, 2001, and as revised on July 22, 2002, and 
September 12, 2002. We approve the rules that Mississippi proposed with 
the provision that the rules 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 924, which codify decisions concerning the Mississippi 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that a State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this rule effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    In this rule, the State is adopting valid existing rights standards 
that are similar to the standards in the Federal definition at 30 CFR 
761.5. Therefore, this rule has the same takings implications as the 
Federal valid existing rights rule. The takings implications assessment 
for the Federal valid existing rights rule appears in Part XXIX.E. of 
the preamble to that rule. See 64 FR 70766, 70822-27, December 17, 
1999. The other provisions in the rule based on counterpart Federal 
regulations do not have takings implications. This determination is

[[Page 71831]]

based on the analysis performed for the counterpart Federal 
regulations. The revisions made at the initiative of the State have 
also been reviewed and a determination made that they do not have 
takings implications. This determination is based on the fact that the 
provisions will have no substantive effect on the regulated industry.

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 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 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 because 
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 
the Federal regulations at 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.

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 pursuant to SMCRA.

Executive Order 13211--Regulations That Significantly Affect The 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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 certifies 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. 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; and (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 an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. 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 did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 924

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 17, 2002.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR Part 924 is amended 
as set forth below:

PART 924--MISSISSIPPI

    1. The authority citation for Part 924 continues to read as 
follows:

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

    2. Section 924.15 is amended in the table by adding a new entry in 
chronological order by Date of final publication to read as follows:


Sec.  924.15  Approval of Mississippi regulatory program amendments.

* * * * *

[[Page 71832]]



----------------------------------------------------------------------------------------------------------------
  Original amendment submission date       Date of final publication              Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
September 28, 2001....................  December 3, 2002..............  Sections 105; 1103; 1105; 1106; 1107(a),
                                                                         (b), (f), and (h); 2103(b)(14), (c),
                                                                         (d), (e), and (f); 3114; 53103(a) and
                                                                         (b); 53111(a)(4) and (5); 6511(c); and
                                                                         Appendix A: Revegetation Success
                                                                         Guidelines
----------------------------------------------------------------------------------------------------------------

Sec.  924.16  [Amended]

    3. Section 924.16 is amended by removing and reserving paragraphs 
(i) and (l).

    4. Section 924.17 is amended by revising the section heading to 
read as follows:


Sec.  924.17  State regulatory program provisions and amendments not 
approved.

[FR Doc. 02-30607 Filed 12-2-02; 8:45 am]
BILLING CODE 4310-05-P