[Federal Register Volume 68, Number 175 (Wednesday, September 10, 2003)]
[Rules and Regulations]
[Pages 53292-53294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23077]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-120-FOR]


Virginia Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving a proposed amendment to the Virginia 
regulatory program under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act). The program amendment increases the permit 
and anniversary fees for Coal Surface Mining and Reclamation permits 
issued by the Virginia Department of Mines, Minerals and Energy (DMME).

EFFECTIVE DATE: September 10, 2003.

FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big 
Stone Gap Field Office; Telephone: (540) 523-4303. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Virginia 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 Virginia 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 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 
conditionally approved the Virginia program on December 15, 1981. You 
can find background information on the Virginia program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval of the Virginia program in the December 15, 1981, Federal 
Register (46 FR 61088). You can also find later actions concerning 
Virginia's program and program amendments at 30 CFR 946.12, 946.13, and 
946.15.

II. Submission of the Amendment

    By letter dated May 16, 2003 (Administrative Record Number VA-
1029), the DMME submitted an amendment to the Virginia program. In its 
letter, the DMME stated that the 2003 Virginia General Assembly enacted 
legislation (House Bill 2465/ Senate Bill 1173 approved March 18, 2003) 
to increase the permit and anniversary fees for Coal Surface Mining and 
Reclamation permits issued by DMME.
    The proposed amendment revises the Code of Virginia at section 
45.1-235.E and the Virginia Coal Surface Mining and Reclamation 
Regulations at 4VAC25-130-777.17 concerning permit fees. Specifically, 
Virginia is increasing the permit application fee for a surface coal 
mining and reclamation permit from $12.00 to $26.00 per acre or any 
fraction thereof for the total acreage permitted. In addition, the 
anniversary fee is being increased from $6.00 to $13.00 per acre or any 
fraction thereof for areas disturbed under the permit. This fee is paid 
each year on the anniversary of the permit's issuance, and represents 
an ongoing permitting cost.
    We announced receipt of the proposed amendment in the July 7, 2003, 
Federal Register (68 FR 40227). 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 (Administrative Record 
Number VA-1031). We did not hold a public hearing or meeting because no 
one requested one. The public comment period ended on August 6, 2003. 
We received comments from four Federal agencies.

III. OSM's Findings

    We are approving the amendment. Our findings concerning the 
amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 
732.17 are presented below.
    The Federal regulations at 30 CFR 777.17, concerning permit fees, 
provide that an application for a surface coal mining and reclamation 
permit shall be accompanied by a fee determined by the regulatory 
authority. The Federal regulations also provide that the fee may be 
less than, but shall not exceed, the actual or anticipated cost of 
reviewing, administering, and enforcing the permit. The fee increases 
proposed by Virginia are the first such increases since the State 
received permanent program approval in 1981. We find that the permit 
fees proposed by Virginia are reasonable and consistent with the

[[Page 53293]]

discretionary authority provided by the Federal regulations at 30 CFR 
777.17.

IV. Summary and Disposition of Comments

Public Comments

    No public comments were received in response to our requests for 
comments from the public on the proposed amendments.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on May, 
29, 2003, we requested comments on the amendments from various Federal 
agencies with an actual or potential interest in the Virginia program 
(Administrative Record Number VA-1030). On June 4, 2003, the U.S. 
Department of Agriculture, Natural Resources Conservation Service 
(NRCS) responded (Administrative Record Number VA-1032) and stated that 
it concurs with the changes concerning permit and fee rates. These 
changes, NRCS stated, will better reflect actual AML costs and changes 
passed by the 2003 Virginia General Assembly. NRCS stated that the 
amendment proposed by Virginia should conform to presently practiced 
regulations and costs to better suit their intended use. NRCS 
recommended that the amendment be accepted by OSM. As noted in our 
findings above, we are approving the amendment.
    On June 6, 2003, the U.S. Department of Labor, Mine Safety and 
Health Administration (MSHA) responded and stated that the amendment 
appears adequate to serve the intended purpose and does not conflict 
with MSHA regulation or policy (Administrative Record Number VA-1033).
    On July 21, 2003, the U.S. Department of the Interior, Bureau of 
Land Management, Solid Minerals Group responded and stated that it had 
no comments regarding the revision (Administrative Record Number VA-
1035).

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from 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 Virginia proposed to 
make in this amendment pertain to air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment. Under 30 CFR 
732.17(h)(11)(i), we requested comments on the amendment from EPA 
(Administrative Record Number WV-1030).
    The EPA responded by letter dated July 17, 2003 (Administrative 
Record Number VA-1034), and stated that there are no apparent 
inconsistencies with the Clean Water Act or other statutes or 
regulations under EPA's jurisdiction. EPA offered no further comments.

V. OSM's Decision

    Based on the above findings, we approve the amendment sent to us by 
Virginia on May 16, 2003.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 946, which codify decisions concerning the Virginia 
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 the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based upon the analysis performed under various laws and executive 
orders for the counterpart Federal regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempt 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 final rule applies only to the Virginia program and therefore does 
not affect tribal programs.

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 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 analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

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 analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 11, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.


0
For the reasons set out in the preamble, 30 CFR Part 946 is amended as 
set forth below:

PART 946--VIRGINIA

0
1. The authority citation for Part 946 continues to read as follows:

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

0
2. Section 946.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  946.15  Approval of Virginia regulatory program amendments.

* * * * *

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   Original amendment submission date     Date of final publication              Citation/description
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                                                                      VA Code Sec.   45.1-235.E.
 
                                                  * * * * * * *
May 16, 2003...........................  September 10, 2003.........  4 VAC 25-130-777.17.
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[FR Doc. 03-23077 Filed 9-9-03; 8:45 am]
BILLING CODE 4310-05-P