[Federal Register Volume 68, Number 163 (Friday, August 22, 2003)]
[Rules and Regulations]
[Pages 50944-50949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21475]



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Part V





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Part 925



Substituted Federal Enforcement of Portions of Missouri's Permanent 
Regulatory Program and Findings on the Status of Missouri's Permanent 
Regulatory Program; Final Rule and Proposed Rule

  Federal Register / Vol. 68, No. 163 / Friday, August 22, 2003 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 925


Substituted Federal Enforcement of Portions of Missouri's 
Permanent Regulatory Program and Findings on the Status of Missouri's 
Permanent Regulatory Program

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

ACTION: Final rule.

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SUMMARY: On November 21, 1980, the Secretary of the Interior (the 
Secretary) conditionally approved the Missouri permanent regulatory 
program (Missouri program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). On August 4, 2003, we, the 
Office of Surface Mining Reclamation and Enforcement (OSM), notified 
the Governor of Missouri that serious problems exist that are adversely 
affecting implementation and enforcement of the Missouri program. The 
Missouri Department of Natural Resources, Air and Land Protection 
Division, Land Reclamation Program (MLRP) is the regulatory authority 
responsible for implementing and enforcing the Missouri program. We 
also told the Governor that because of the severity of these problems, 
we must immediately substitute Federal enforcement for portions of the 
Missouri program in the areas of inspection, enforcement, permitting, 
and bonding activities. Therefore, in accordance with the provisions of 
our regulations, we are instituting direct Federal enforcement for 
those portions of the Missouri program that the MLRP is not adequately 
implementing or enforcing.
    Because we believe that it is preferable that States hold the 
primary responsibility for regulating surface coal mining and 
reclamation operations, we will provide the MLRP with assistance and 
guidance, as necessary, to resolve the issues and to regain full 
authority for those portions of the Missouri program that are not being 
adequately implemented or enforced. This document also sets forth our 
findings regarding this action and the status of those portions of the 
Missouri program that the MLRP will continue to administer.

EFFECTIVE DATE: August 22, 2003.

FOR FURTHER INFORMATION CONTACT: John W. Coleman, Mid-Continent 
Regional Coordinating Center, Office of Surface Mining, 501 Belle 
Street, Alton, Illinois 62002. Telephone: (618) 463-6460. Internet 
address: [email protected].

SUPPLEMENTARY INFORMATION: 
I. Background on the Missouri Program
II. OSM's Findings on the Status of the Missouri Program
III. OSM's Decision
IV. OSM's Actions and State Remedial Actions
V. Procedural Determinations

I. Background on the Missouri 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 this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary conditionally approved the 
Missouri program on November 21, 1980. You can find background 
information on the Missouri program, including the Secretary's 
findings, the disposition of comments, and conditions of approval, in 
the November 21, 1980, Federal Register (45 FR 77017). You can also 
find later actions concerning the Missouri program and program 
amendments at 30 CFR 925.10, 925.12, 925.15, and 925.16.
    The Abandoned Mine Land Reclamation (AMLR) Program was established 
by Title IV of the Act (30 U.S.C. 1201 et seq.) in response to concerns 
over extensive environmental damage caused by past coal mining 
activities. The program is funded by a reclamation fee collected on 
each ton of coal that is produced. The money collected is used to 
finance the reclamation of abandoned coal mines and for other 
authorized activities. Section 405 of the Act allows States and Indian 
Tribes to assume exclusive responsibility for reclamation activity 
within the State or on Indian lands if they develop and submit to the 
Secretary for approval, a program (often referred to as a plan) for the 
reclamation of abandoned coal mines. Section 405(c) of the Act also 
requires States to have an approved State regulatory program before the 
Secretary can approve a State program for the reclamation of abandoned 
coal mines. On the basis of these criteria, the Secretary approved the 
Missouri plan on January 29, 1982. You can find background information 
on the Missouri plan, including the Secretary's findings, the 
disposition of comments, and the approval of the plan in the January 
29, 1982, Federal Register (47 FR 4253). You can find later actions 
concerning the Missouri plan and amendments to the plan at 30 CFR 
925.25.
    Section 410 of SMCRA authorizes the Secretary to use funds under 
the AMLR program to abate or control emergency situations in which 
adverse effects of past coal mining pose an immediate danger to the 
public health, safety, or general welfare. In a Federal Register notice 
dated September 29, 1982 (47 FR 42729), we invited States to amend 
their AMLR plans for the purpose of undertaking emergency reclamation 
programs on our behalf. We approved Missouri's assumption of the AMLR 
emergency program on June 24, 1998. You can find background 
information, including our findings, the disposition of comments, and 
the approval of the Missouri AMLR emergency program in the June 24, 
1998, Federal Register (63 FR 34277).
    On June 19, 2003, the MLRP notified us that the Missouri 
Legislature passed House Bill (HB) 6 that appropriated funds for the 
Missouri program. HB 6 did not fully fund the Missouri program for the 
period beginning July 1, 2003, and ending June 30, 2004. The Governor 
of Missouri signed the appropriation bill on May 30, 2003 
(Administrative Record No. MO-664).
    On July 2, 2003, we met with the MLRP at the Missouri Department of 
Natural Resources' office in Jefferson City, Missouri (Administrative 
Record No. MO-664.1). During the meeting, the MLRP made a presentation, 
including a series of slides, describing the recently approved 
appropriation bill. HB 6 contained a severe cut in general revenue 
dollars available as State matching funds for the regulatory program. 
The MLRP advised us that the moneys that are available for the 
regulatory program would only be used for bond forfeiture reclamation 
activities. Also, the MLRP advised us that the State Legislature 
appropriated funds for the AMLR program. In addition, the MLRP 
explained that as of July 18, 2003, existing regulatory program staff, 
with the exception of four full-time employees, would be transferred to 
other programs and that it would not be able to implement and maintain 
its inspection, enforcement, permitting, or bond release 
responsibilities under the currently approved Missouri program. The 
four full-time employees would perform the bond forfeiture reclamation 
activities that were funded by the State Legislature. The MLRP 
indicated that it

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would try to gain full program funding from the Missouri Legislature 
next year.
    On July 11, 2003, the MLRP notified the Missouri coal operators 
that the Legislature had decided, through the budget process, to 
withhold funding and staffing for the Missouri program. The MLRP also 
notified the operators that after July 18, 2003, it would no longer be 
available for surface coal mining and reclamation regulatory issues 
(Administrative Record No. MO-664.2).
    On July 21, 2003, the Governor of Missouri notified us that the 
State of Missouri is experiencing difficult budget and revenue 
shortfalls (Administrative Record No. MO-664.3). As a result of the 
revenue shortfalls, he requested assistance with permit reviews, 
inspection activities, and general oversight of the active coal mining 
operations in the State. He indicated that Missouri continues to have 
adequate funding and staff available to maintain design and reclamation 
efforts for bond forfeiture sites, as well as sufficient funding and 
staff to maintain the AMLR program, including the emergency program. He 
also indicated that he was hopeful his request would be temporary and 
that he would continue to work with the Legislature in an attempt to 
assure adequate funding for all of Missouri's regulatory program 
responsibilities.
    On August 4, 2003, we notified the Governor of Missouri that we 
were obligated, in accordance with 30 CFR 733.12(e), to substitute 
Federal enforcement for those portions of the Missouri program that 
were not fully funded and staffed (Administrative Record No. MO-664.4). 
We cited Missouri's failure to fund and staff the Missouri program in 
several areas including inspection, enforcement, permitting, and 
bonding activities.
    All Missouri Administrative Record documents from MO-664 (June 19, 
2003) through MO-664.4 (August 4, 2003) are being considered in this 
rulemaking.

II. OSM's Findings on the Status of the Missouri Program

    On the basis of the record described above, we are making the 
following findings in accordance with sections 504 and 521(b) of SMCRA 
and 30 CFR 733.12.

A. Inspection and Enforcement

    The MLRP currently has approximately 46 active and inactive mine 
sites to inspect. By State law, each active site requires four complete 
and eight partial inspections per year. Inactive sites require four 
complete inspections per year and sufficient partial inspections to 
ensure compliance with the State program. On July 2, 2003, the MLRP 
notified us that effective July 18, 2003, existing regulatory program 
staff, including inspection and enforcement staff, would be transferred 
to other programs. Therefore, we find that the MLRP does not have the 
program staff necessary to implement and maintain its inspection and 
enforcement provisions in the Code of State Regulations (CSR) at 10 CSR 
40-8.030 or its civil and criminal penalty provisions at 10 CSR 40-
8.040 and 40-8.045. Thus, the MLRP cannot effectively implement, 
maintain, or enforce the inspection and enforcement aspects of the 
approved Missouri program and has not demonstrated that it intends to 
administer these aspects of the program.

B. Permitting

    The MLRP currently has one new permit and several permit revisions 
that are pending review for possible approval. On July 2, 2003, the 
MLRP notified us that effective July 18, 2003, existing regulatory 
program staff, including permitting staff, would be transferred to 
other programs. Therefore, we find that the MLRP does not have the 
program staff necessary to implement and maintain its permitting 
provisions at 10 CSR 40-6.010 through 40-6.120. Thus, the MLRP cannot 
effectively implement, maintain, or enforce this permitting aspect of 
the approved Missouri program and has not demonstrated that it intends 
to administer this aspect of the program.

C. Bonding

1. Performance Bond Requirements
    On July 2, 2003, the MLRP told us that effective July 18, 2003, 
existing regulatory program staff, with the exception of bond 
forfeiture reclamation staff, would be transferred to other programs. 
Therefore, we find that the MLRP does not have the program staff 
necessary to implement and maintain its general bonding provisions at 
10 CSR 40-7.011, bond release provisions at 10 CSR 40-7.021, or bond 
forfeiture provisions at 10 CSR 40-7.031, with the exception of 10 CSR 
40-7.031(3) concerning bond forfeiture reclamation activities. Thus, 
the MLRP cannot effectively implement, maintain, or enforce all of the 
bonding aspects of the approved Missouri program and has not 
demonstrated that it intends to administer these aspects, with the 
exception of bond forfeiture reclamation activities.
2. Bond Forfeiture Reclamation Activities
    On July 2, 2003, Missouri told us that the Missouri Legislature 
appropriated funds for bond forfeiture reclamation. Missouri indicated 
that it would use the funds to provide four full-time regulatory 
program staff to implement this activity. Missouri had approximately 33 
sites with bonds forfeited and collected that were unreclaimed as of 
September 30, 2002. In our 2002 annual evaluation report for Missouri, 
we found that the State took several actions to improve the 
effectiveness of its bond forfeiture reclamation. The MLRP developed a 
work plan for completing reclamation at several forfeiture sites and 
instituted changes in its internal procedures for handling forfeiture 
projects. Therefore, we find that Missouri has the program staff 
necessary to implement, maintain, and enforce the bond forfeiture 
reclamation requirements of the approved Missouri program.

III. OSM's Decision

    Having reviewed and considered all available information on the 
MLRP's capability and intent to implement, maintain, and enforce the 
Missouri program, we made the following determinations.
    Missouri has indicated its intent to take steps to resolve the 
funding and staffing issues for the entire program. For this reason, we 
find that, at this time, withdrawing approval of Missouri's program is 
not justified.
    We determined that the MLRP does have sufficient funding and staff 
to implement and maintain bond forfeiture reclamation activities. We 
also determined that the MLRP does not have adequate staff and 
resources to implement all other aspects of its program. To ensure that 
the adverse effects of surface mining are controlled as required under 
SMCRA, we must assume the responsibility for enforcement of parts of 
the Missouri program until the MLRP is able to administer all segments 
of its program.
    We will directly enforce the inspection and enforcement provisions, 
the permitting provisions, and the bonding and insurance provisions, 
with the exception of bond forfeiture reclamation activities.
    We have developed a process by which the MLRP could resume full 
authority for all aspects of the approved Missouri program. Failure by 
the MLRP to seek and obtain full authority for the Missouri program or 
failure by the MLRP to perform satisfactorily in the areas in which it 
retains enforcement

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authority will result in additional Federal action.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 925, which codify decisions concerning the Missouri 
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)(3) of SMCRA 
requires that a State's program demonstrate that the State regulatory 
authority has sufficient administrative and technical personnel and 
sufficient funding to enable the State to regulate surface coal mining 
and reclamation operations in accordance with the requirements of 
SMCRA. Effective July 18, 2003, Missouri no longer had sufficient 
administrative and technical personnel or adequate funding to 
implement, maintain, and enforce its approved program. Therefore, 
Federal enforcement of Missouri's program must be made effective 
immediately to ensure the protection of the public through effective 
control of surface coal mining and reclamation operations in the State.

IV. OSM Actions and State Remedial Actions

A. Direct Federal Enforcement of the Missouri Program

    Starting on August 22, 2003, we will directly implement, administer 
and enforce the Missouri program requirements to the extent outlined 
below in accordance with the enforcement provisions of SMCRA and the 
Federal regulations. The authority of the MLRP to implement the 
Missouri program is suspended with regard to those provisions listed 
below, with the following exceptions. With respect to State enforcement 
actions initiated before the effective date of this notice, the MLRP 
will have authority to take administrative actions to process 
outstanding violations to a final disposition (including issuing 
proposed assessments, assessing penalties, holding informal conferences 
and hearings, and collecting penalties). However, any actions by the 
MLRP to terminate or vacate enforcement actions will not take effect 
until we approve them. With respect to State bond forfeiture actions 
initiated before the effective date of this notice, the MLRP will have 
authority to perform bond forfeiture reclamation activities.
1. Inspection and enforcement
    a. We will conduct inspections of all coal exploration and surface 
coal mining and reclamation operations, including bond release 
inspections, in accordance with sections 517, 518, 521, 525, and 526 of 
SMCRA (30 U.S.C. 1267, 1268, 1271, 1275, and 1276), 30 CFR parts 842 
through 845, and 43 CFR part 4. With respect to enforcement actions 
initiated by the MLRP before the effective date of this decision, we 
will conduct follow-up inspections at all sites with outstanding 
violations on or after the abatement dates specified in the State-
issued notices of violation.
    b. We will issue, modify, enforce, and terminate notices of 
violation, cessation orders, and show cause orders in accordance with 
sections 517, 518, 521, 525, and 526 of SMCRA (30 U.S.C. 1257, 1268, 
1271, 1275, and 1276), 30 CFR parts 842 through 845, and 43 CFR part 4. 
With respect to enforcement actions initiated by the MLRP before the 
effective date of this decision, we will reinspect the site and if the 
operator has not abated the violation by the abatement date set in the 
State-issued notice of violation, we will take appropriate enforcement 
action. We will issue a notice of violation for any violation observed 
by us that has not been previously cited by the MLRP. We will issue a 
cessation order for any condition or practice that creates an imminent 
danger to the health or safety of the public, or is causing, or can 
reasonably be expected to cause significant, imminent environmental 
harm to land, air, or water resources.
    c. We will impose civil and criminal sanctions, as appropriate, for 
violations of the approved Missouri program in accordance with sections 
517, 518, 521, 525, and 526 of SMCRA (30 U.S.C. 1267, 1268, 1271, 1275, 
and 1276), 30 CFR parts 843 through 845, and 43 CFR part 4.
    d. We will promptly inform the MLRP of the results of all follow-up 
inspections conducted and of enforcement actions taken that pertain to 
enforcement actions initiated by the MLRP before the effective date of 
this decision.
    e. Administrative and judicial review of our enforcement actions 
will be in accordance with 43 CFR part 4.
2. Permitting
    a. We will review all new applications and issue all new permits, 
permit revisions, permit renewals, transfer and assignment or sale of 
permit rights for all surface coal mining and reclamation operations in 
accordance with the approved Missouri program at sections 444.815 
through 444.825, 444.835 through 444.845, and 444.850 of the Missouri 
Surface Coal Mining Law (MSCML) and 10 CSR 40-6.010 through 40-6.120. 
This includes pending permit actions for which the MLRP has not made a 
final decision.
    b. Permit fees are required in accordance with section 444.820.1 of 
MSCML and 10 CSR 40-6.010(6). The fees for all new permitting actions 
must be submitted to and made payable to OSM.
    c. Administrative and judicial review of our permit decisions will 
be in accordance with sections 525 and 526 of SMCRA (30 U.S.C. 1275 and 
1276), 30 CFR part 775, and 43 CFR part 4.
3. Bonding
    a. We will determine the amount of the performance bonds for new 
permitting actions in accordance with section 509 of SMCRA and 30 CFR 
part 800.
    b. We will maintain the amount of the performance bonds for 
existing permits in accordance with the Missouri program at section 
444.830 of MSCML and 10 CSR 40-7.011.
    c. We will review and make decisions on performance bond release 
requests for new and existing permits in accordance with the Missouri 
program at section 444.875 of MSCML and 10 CSR 40-7.021. For existing 
bonds, we will make the required determinations for the amount of the 
bond to be released and submit the determinations to the MLRP for 
release.
    d. New performance bonds must be made payable to the ``United 
States of America and State of Missouri,'' and they must be submitted 
to OSM.
    e. Administrative and judicial review of our performance bond 
determinations will be in accordance with 43 CFR part 4.

B. State Remedial Actions

    To demonstrate its intent and capability to fully implement the 
Missouri program as approved by the Secretary, we will require the MLRP 
to complete the following remedial actions. Failure of the MLRP to 
accomplish these remedial measures could lead to our recommending to 
the Secretary that approval of the State program be withdrawn.
    1. By August 22, 2003, the MLRP must submit to us a list of all 
outstanding enforcement actions specifying the abatement date set for 
each cited violation.
    2. In accordance with the requirements of the approved Missouri 
program, the MLRP must complete administrative disposition of all 
enforcement actions that were initiated before the effective date of 
this decision.
    3. Not later than 30 days from the effective date of this decision, 
the MLRP must submit to us a plan to reassume full authority for the 
Missouri program. At a minimum, the proposal must

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provide specific and adequate provisions that address the following 
problems:
    a. Funding: The proposal must demonstrate to our satisfaction a 
commitment to fully fund the Missouri program.
    b. Staffing: The proposal must demonstrate to our satisfaction a 
commitment to hire a sufficient number of qualified personnel to comply 
with all inspection and enforcement, permitting, and bonding 
requirements of the Missouri program.
    c. Adherence to Approved Program: The proposal must include 
provisions, policy statements, and other affirmative evidence 
sufficient to assure us that the MLRP will be in full compliance at all 
times with the provisions of the Missouri program.
    4. Starting three months after the effective date of this decision, 
the MLRP must submit to us a report once every three months on its 
progress in obtaining full funding for the Missouri program.
    5. Effective September 8, 2003, the MLRP must take all steps 
necessary to ensure that all records, documents, correspondence, 
inspector logs, etc. are made secure and to supply copies of all 
documents to us upon request.

C. Resumption of State Authority

    In order to resume regulatory authority over any portion of the 
inspection and enforcement, permitting, and bonding aspects of the 
Missouri program, the MLRP must formally petition us. We will entertain 
such a petition upon completion of the actions listed above under 
``State Remedial Actions.''
    Before making a decision to allow the MLRP to resume regulatory 
authority over any portion of the inspection and enforcement, 
permitting, or bonding operations, we will schedule a public comment 
period and hold a public hearing as outlined under 30 CFR 925.19. On 
the basis of the information available to us, we will determine if the 
MLRP will be allowed to resume regulatory authority over the Missouri 
program.

D. 30 CFR 733 Action

    We will publish any additional findings and decisions on this 
action in the Federal Register and will amend 30 CFR part 925 
accordingly. A notice announcing a public comment period and 
opportunity for a hearing on Missouri's implementation of its program 
and our substitution of Federal enforcement may be found else where in 
this edition of the Federal Register.

E. Funding

    We have decided that we will not provide additional grant funds to 
the MLRP for initiating new projects under the approved Missouri AMLR 
program under Title IV of SMCRA. We will review the status of any 
uninitiated projects that are currently funded under one or more AMLR 
construction grants as well as any high-priority proposed projects and 
take action as appropriate. Also, Missouri currently administers for us 
the AML emergency program in the State. We will continue to fund this 
program, as needed.
    Because the MLRP's regulatory authority and responsibilities are 
being modified, funding under future administration and enforcement 
grants for implementation of the Missouri program must reflect actual 
regulatory authority responsibilities. The MLRP may submit an 
application for a new administration and enforcement grant based on its 
modified responsibilities.

V. Procedural Determinations

Executive Order 12630--Takings

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

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) 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 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
This determination is based on the fact that the Missouri program does 
not regulate coal exploration and surface coal mining and reclamation 
operations on Indian lands. Therefore, the Missouri program has no 
effect on Federally-recognized Indian tribes.

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

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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 the substitution of 
Federal enforcement for portions of Missouri's permanent regulatory 
program 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 rule is not expected to result in additional costs to 
the regulated industry.

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 rule is 
not expected to result in additional costs to the regulated industry.

Unfunded Mandates

    The substitution of Federal enforcement for portions of Missouri's 
permanent regulatory program 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 
nature of the action being taken.

List of Subjects in 30 CFR Part 925

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 15, 2003.
Rebecca W. Watson,
Assistant Secretary, Land and Minerals Management.

0
For the reasons set out in the preamble, 30 CFR part 925 is amended as 
set forth below:

PART 925--MISSOURI

0
1. The authority citation for part 925 continues to read as follows:

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

0
2. Add section 925.17 to read as follows:


Sec.  925.17  Direct Federal enforcement of the Missouri program.

    Starting on August 22, 2003, OSM will directly implement, 
administer and enforce the Missouri program requirements to the extent 
outlined below in accordance with the enforcement provisions of SMCRA 
and the Federal regulations. The authority of the Missouri Department 
of Natural Resources, Air and Land Protection Division, Land 
Reclamation Program (MLRP) to implement the Missouri regulatory program 
is suspended with regard to those provisions listed below, with the 
following exceptions. With respect to State enforcement actions 
initiated before August 22, 2003, the MLRP will have authority to take 
administrative actions to process outstanding violations to a final 
disposition (including issuing proposed assessments, assessing 
penalties, holding informal conferences and hearings, and collecting 
penalties). However, any actions by the MLRP to terminate or vacate 
enforcement actions will not take effect until we approve them. With 
respect to bond forfeiture actions initiated before August 22, 2003, 
the MLRP will have authority to perform bond forfeiture reclamation 
activities.
    (a) OSM will conduct inspections of all coal exploration and 
surface coal mining and reclamation operations, including bond release 
inspections, in accordance with sections 517, 518, 521, 525, and 526 of 
SMCRA (30 U.S.C. 1267, 1268, 1271, 1275, and 1276), 30 CFR parts 842 
through 845, and 43 CFR part 4. With respect to enforcement actions 
initiated by the MLRP before August 22, 2003, we will conduct follow-up 
inspections at all sites with outstanding violations on or after the 
abatement dates specified in the State-issued notices of violation.
    (b) OSM will issue, modify, enforce, and terminate notices of 
violation, cessation orders, and show cause orders for violations of 
the approved Missouri program, in accordance with sections 517, 518, 
521, 525, and 526 of SMCRA (30 U.S.C. 1257, 1268, 1271, 1275, and 
1276), 30 CFR parts 842 through 845, and 43 CFR part 4. With respect to 
enforcement actions initiated by the MLRP before August 22, 2003, we 
will reinspect the site and if the operator has not abated the 
violation by the abatement date set in the State-issued notice of 
violation, we will take appropriate enforcement action. We will issue a 
notice of violation for any violation observed by us that has not been 
previously cited by the MLRP. We will issue a cessation order for any 
condition or practice that creates an imminent danger to the health or 
safety of the public, or is causing, or can reasonably be expected to 
cause significant, imminent environmental harm to land, air, or water 
resources.
    (c) OSM will impose civil and criminal sanctions, as appropriate, 
for violations of the Missouri program in accordance with sections 517, 
518, 521, 525, and 526 of SMCRA (30 U.S.C. 1267, 1268, 1271, 1275, and 
1276), 30 CFR parts 843 through 845, and 43 CFR part 4.
    (d) OSM will promptly inform the MLRP of the results of all follow-
up inspections conducted and of enforcement actions taken that pertain 
to enforcement actions initiated by the MLRP before August 22, 2003.
    (e) OSM will review all new applications and issue all new permits, 
permit revisions, permit renewals, transfer and assignment or sale of 
permit rights for all surface coal mining and reclamation operations in 
accordance with the approved Missouri program at sections 444.815 
through 444.825, 444.835 through 444.845, and 444.850 of the Missouri 
Surface Coal Mining Law (MSCML) and 10 CSR 40-6.010 through 40-6.120. 
This includes pending permit actions for which the MLRP has not made a 
final decision. Administrative and judicial review will be in 
accordance with sections 525 and 526 of SMCRA (30 U.S.C. 1275 and 
1276), 30 CFR part 775, and 43 CFR part 4.
    (f) Permit fees are required in accordance with section 444.820.1 
of MSCML and 10 CSR 40-6.010(6). The fees for all new permitting 
actions must be submitted to and made payable to OSM.
    (g) OSM will determine the amount of the performance bonds for new 
permitting actions in accordance with section 509 of SMCRA and 30 CFR 
part 800.
    (h) OSM will maintain the amount of the performance bonds for 
existing permits in accordance with the Missouri program at section 
444.830 of MSCML and 10 CSR 40-7.011.
    (i) OSM will review and make decisions on performance bond release 
requests for new and existing permits in accordance with the Missouri 
program at section 444.875 of MSCML and 10 CSR 40-7.021. For existing 
bonds, we will make the required determinations

[[Page 50949]]

for the amount of the bond to be released and submit the determinations 
to the MLRP for release.
    (j) Performance bonds must be made payable to the ``United States 
of America and State of Missouri,'' and they must be submitted to OSM.
    (k) Administrative and judicial review of OSM's enforcement 
actions, permitting decisions, and performance bond determinations will 
be in accordance with 43 CFR part 4.

0
3. Add section 925.18 to read as follows:


Sec.  925.18  State remedial actions.

    As a prerequisite to the Missouri Department of Natural Resources, 
Air and Land Protection Division, Land Reclamation Program (MLRP) 
reassuming authority to implement the provisions of the Missouri 
program that are being directly enforced by OSM, as specified under 30 
CFR 936.17, the MLRP must complete the remedial measures specified 
below to demonstrate its intent and capability to fully implement the 
Missouri program.
    (a) By August 22, 2003, the MLRP must submit to OSM a list of all 
outstanding enforcement actions specifying the abatement date set for 
each cited violation.
    (b) In accordance with the requirements of the approved Missouri 
program, the MLRP must complete administrative disposition of all 
enforcement actions that were initiated before the effective date of 
this decision.
    (c) Not later than September 22, 2003, the MLRP must submit to OSM 
a plan to reassume full authority for the Missouri program. At a 
minimum, the proposal must provide specific and adequate provisions 
that address the following problems:
    (1) Funding: The proposal must demonstrate to the satisfaction of 
OSM a commitment to fully fund the Missouri program.
    (2) Staffing: The proposal must demonstrate to the satisfaction of 
OSM a commitment to hire a sufficient number of qualified personnel to 
comply with all inspection and enforcement, permitting, and bonding 
requirements of the approved Missouri program.
    (3) Adherence to Approved Program: The proposal must include 
provisions, policy statements, and other affirmative evidence 
sufficient to assure OSM that the MLRP will be in full compliance at 
all times with the provisions of the Missouri program.
    (d) Starting November 20, 2003, the MLRP must submit to OSM a 
report once every three months on its progress in obtaining full 
funding for the Missouri program.
    (e) Effective September 8, 2003, the MLRP must take all steps 
necessary to ensure that all records, documents, correspondence, 
inspector logs, etc. are made secure and to supply copies of all 
documents to OSM upon request.

0
4. Add Sec.  925.19 to read as follows:


Sec.  925.19  Termination of Federal enforcement of the Missouri 
program.

    (a) OSM will consider returning to the MLRP the authority suspended 
under 30 CFR 925.17 provided the following requirements have been met:
    (1) The MLRP accomplished to the satisfaction of OSM all remedial 
actions specified under 30 CFR 925.18.
    (2) The MLRP petitioned OSM in writing to consider returning 
authority to the State.
    (b) Upon satisfaction of the requirements specified in paragraph 
(a) of this section, OSM will schedule a public comment period and 
hearing on the MLRP's request.
    (c) Following the close of the hearing and the comment period, OSM 
will announce in the Federal Register its decision to grant in whole or 
in part, or to deny the MLRP's request.
    (d) Following OSM's decision to grant, in part, or to deny the 
MLRP's request, we will publish in the Federal Register further actions 
the MLRP will be required to take and the timeframes for taking such 
actions before OSM will consider a second request from the MLRP to 
return authority to the State.

[FR Doc. 03-21475 Filed 8-21-03; 8:45 am]
BILLING CODE 4310-05-P