[Federal Register Volume 69, Number 73 (Thursday, April 15, 2004)]
[Rules and Regulations]
[Pages 19927-19932]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8587]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 925


Clarification of Substituted Federal Enforcement for Parts 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; clarification.

-----------------------------------------------------------------------

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 existed that were 
adversely affecting the Missouri Department of Natural Resources, Air 
and Land Protection Division, Land Reclamation Program's (MLRP) 
implementation and enforcement of the Missouri program. In accordance 
with the provisions of 30 CFR 733.12(f), we announced our decision, 
effective August 22, 2003, to institute direct Federal enforcement for 
those portions of the Missouri program that the MLRP could not 
adequately implement and enforce. With the substitution of Federal 
enforcement authority, we outlined a process by which Missouri could 
regain full authority for its program.
    This document clarifies the portions of the Missouri program that 
we directly enforce and sets forth our findings regarding the status of 
those portions of Missouri's program for which we required remedial 
actions.
    This rule is being made effective immediately in order to expedite 
the actions required of the State to resume full authority for its 
approved program.

EFFECTIVE DATE: April 15, 2004.

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.

SUPPLEMENTARY INFORMATION: 

I. Background on the Missouri Program
II. Clarification of OSM's August 22, 2003, Decision to Substitute 
Federal Enforcement for Parts of the Missouri Program
III. OSM's Decision
IV. Disposition of Comments
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, 925.16, 925.17, 925.18, 
and 925.19.
    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. In HB 6, the Missouri Legislature 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

[[Page 19928]]

No. MO-664.1). During the meeting, the MLRP made a presentation 
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 would try to gain full program funding from the 
Missouri Legislature for fiscal year 2005.
    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.
    On August 22, 2003, we announced our decision to substitute Federal 
enforcement for portions of the Missouri program (68 FR 50944). On the 
same day, we announced a public comment period and opportunity for a 
hearing on Missouri's implementation of its program and our 
substitution of Federal enforcement. We did not hold a public hearing 
because no one requested one. The public comment period ended on 
September 22, 2003. We received comments from one industry group and 
the Missouri Land Reclamation Commission (Commission).

II. Clarification of OSM's August 22, 2003, Decision To Substitute 
Federal Enforcement for Parts of the Missouri Program

A. Direct Federal Enforcement of the Missouri Program

    1. Effective August 22, 2003, we suspended the authority of the 
MLRP to implement all portions of the Missouri permanent regulatory 
program except bond forfeiture reclamation activities. 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. In place of the MLRP's suspended 
authority, we substituted direct Federal enforcement and assumed 
responsibility to implement, administer, and enforce those portions of 
the Missouri program that were not fully funded and staffed, including 
inspection, enforcement, permitting, and bonding. After substituting 
direct Federal enforcement, we received a letter dated November 19, 
2003, from the Missouri Land Reclamation Commission commenting that it 
would be beneficial for members of the public if we provide 
clarification for some of our August 22, 2003, decisions on direct 
Federal enforcement of the Missouri program (MO-664.15). We are, 
therefore, providing clarification on our August 22, 2003, decisions.
    a. In the introductory paragraph of 30 CFR 925.17, we stated that 
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. In this document we are clarifying that the MLRP 
does not need our approval to terminate or vacate enforcement actions. 
We will conduct inspections of all permitted sites and, if a violation 
exists, we will take appropriate Federal enforcement action.
    We also stated that with respect to bond forfeiture actions 
initiated before August 22, 2003, the MLRP will have the authority to 
perform bond forfeiture reclamation activities. In this document we are 
clarifying that bond forfeiture reclamation activities include, but are 
not limited to, issuing show-cause orders, revoking permits, initiating 
proceedings to declare bonds forfeited, and administering reclamation 
in lieu of bond forfeiture. The MLRP will have the authority to perform 
bond forfeiture reclamation activities initiated after August 22, 2003, 
if show-cause orders to revoke permits were initiated before August 22, 
2003, and those show-cause orders subsequently result in forfeiture of 
the bond. We are revising the introductory paragraph of 30 CFR 925.17 
to reflect this decision.
    b. At 30 CFR 925.17(a), we specified that 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. We are clarifying in this document that we will use 
the Federal inspection and enforcement requirements contained in the 
above referenced statutory and regulatory provisions to determine 
compliance with the substantive requirements of the Missouri program, 
including the performance standards contained in Missouri's laws and 
regulations. We are revising 30 CFR 925.17(a) to reflect this decision.
    c. At 30 CFR 925.17(c), we provided that 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 CFR parts 843 through 845, and 43 CFR part 4. We are 
clarifying in this document that we will impose civil and criminal 
sanctions for those violations that are issued by us. We are also 
correcting our regulation reference by adding a reference to 30 CFR 
parts 846 and 847 concerning individual civil penalties and alternative 
enforcement, respectively.

[[Page 19929]]

We are revising 30 CFR 925.17(c) to reflect this decision.
    d. At 30 CFR 925.17(i), we specified that 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 
the Missouri Surface Coal Mining Law (MSCML) and 10 Code of State 
Regulations (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. We are clarifying in 
this document that we will make the required determinations for the 
amount of the bond to be released and submit the determinations to the 
MLRP. The MLRP will present our bond release determinations for the 
amount of existing bonds to be released to the Missouri Land 
Reclamation Commission, who will make a final decision on the release. 
We are revising 30 CFR 925.17(i) to reflect this decision.
    e. At 30 CFR 925.17(k), we provided that administrative and 
judicial review of our enforcement actions, permitting decisions, and 
performance bond determinations will be in accordance with 43 CFR part 
4. We are clarifying in this document that administrative and judicial 
review of final bond release decisions made by the Commission for 
existing performance bonds will be subject to the procedures specified 
in Missouri's laws and regulations at section 444.875 of MSCML and 10 
CSR 40-7.021(4). Administrative and judicial review of final bond 
release decisions made by us for new performance bonds will be subject 
to the procedures specified in the Federal regulations at 43 CFR part 
4. We are revising 30 CFR 925.17(k) to reflect this decision.
    2. Today we are revising 30 CFR 925.17 to clarify that on August 
22, 2003, we also substituted direct Federal enforcement and assumed 
responsibility to implement, administer, and enforce those portions of 
the Missouri program concerning training, examination, and 
certification of blasters; areas unsuitable for mining; and small 
operator assistance.
    a. We will review and issue decisions on applications for blaster 
certification in accordance with the approved Missouri program at 
sections 444.855.2(15)(d) and 444.905.4 of MSCML and 10 CSR 40-3.160. 
The applicants must submit OSM Form 74 when applying for blaster 
certification. Administrative and judicial review of our decisions will 
be in accordance with 43 CFR part 4.
    b. We will review and issue decisions on petitions to have areas 
designated as unsuitable for surface coal mining operations in 
accordance with the approved Missouri program at section 444.890 of 
MSCML and 10 CSR 40-5.020. Judicial review of our decisions will be in 
accordance with sections 526(a)(2) and (b) of SMCRA (30 U.S.C. 
1276(a)(2) and (b)) and 30 CFR 775.13.
    c. We will review and issue decisions on applications for small 
operator assistance in accordance with section 507(c) of SMCRA (30 
U.S.C. 1257(c)) and the approved Missouri program at 10 CSR 40-8.050. 
Administrative and judicial review of our decisions will be in 
accordance with 43 CFR part 4.

B. Findings on the Status of the Remedial Actions Codified at 30 CFR 
925.18

    In order for the MLRP to demonstrate its intent and capability to 
fully implement the Missouri program as approved by the Secretary, we 
required the MLRP to complete certain remedial actions, which we 
codified at 30 CFR 925.18.
    1. 30 CFR 925.18(a)--By August 22, 2003, the MLRP was to submit to 
us a list of all outstanding enforcement actions specifying the 
abatement date set for each cited violation.
    On July 22, 2003, the Missouri Attorney General's office provided 
us with a complete copy of all outstanding enforcement actions 
(Administrative Record No. MO-664.13).
    The notices of violation and cessation orders specified the 
abatement date set for each cited violation. Therefore, we are removing 
the required remedial action codified at 30 CFR 925.18(a).
    2. 30 CFR 925.18(b)--In accordance with the requirements of the 
approved Missouri program, the MLRP was to complete administrative 
disposition of all enforcement actions that were initiated before 
August 22, 2003. We are clarifying in this document that the MLRP may 
conduct penalty assessments, hold informal conferences and hearings, 
collect penalties, and terminate or vacate enforcement actions. We will 
inspect the sites and if a violation exists, we will take appropriate 
Federal enforcement action.
    On November 25, 2003, the MLRP notified us that it had completed 
administrative disposition of five enforcement actions that were 
initiated before August 22, 2003 (Administrative Record No. MO-664.17). 
Additionally, on February 18, 2004, the MLRP notified us that it had 
completed administrative disposition of six more enforcement actions 
(Administrative Record No. MO-664.18A).
    3. 30 CFR 925.18(c)--Not later than September 22, 2003, the MLRP 
was to submit to us a plan to reassume full authority for the Missouri 
program.
    On September 19, 2003, the MLRP submitted information on the time 
frames necessary to reassume full authority for the Missouri program 
(Administrative Record No. Mo-664.11). The MLRP indicated that the 
first opportunity to correct the funding and staffing shortage would be 
in January 2004 when the State Legislature reconvenes. At that time, 
the Legislature would decide whether or not to restore the necessary 
funding and staff for the MLRP. The earliest the MLRP could reassume 
authority will be July 1, 2004. Based on the information provided by 
the MLRP, we are changing the date for submitting a specific plan that 
addresses funding, staffing, and adherence to the provisions of the 
Missouri program. We are changing the date from September 22, 2003, to 
within 30 days of the date on which we have received and acknowledged 
an accurate description of available funding for the regulatory 
program. We are revising the required remedial action codified at 30 
CFR 925.18(c) to reflect this decision.
    4. 30 CFR 925.18(d)--Starting on November 20, 2003, the MLRP was to 
submit to us a report once every three months on its progress in 
obtaining full funding for the Missouri program.
    After considering the information on time frames for obtaining 
funding for the Missouri program that the MLRP sent to us on September 
19, 2003, we are changing the starting date and reporting frequency for 
this report from November 20, 2003, to April 1, 2004, and from every 
three months to monthly. We are revising the required remedial action 
codified at 30 CFR 925.18(d) to reflect this decision.
    5. 30 CFR 925.18(e)--Effective September 8, 2003, the MLRP was to 
take all steps necessary to ensure that all records, documents, 
correspondence, inspector logs, etc. were made secure and to supply 
copies of all documents to us upon request.
    Beginning in July 2003, the MLRP provided access to all materials 
that were requested by us (Administrative Record No. MO-664.13). The 
MLRP also provided us with copies of all items, such as permit review 
documents and bond release applications, that were pending when the 
funding for the State program was lost. Therefore, we are removing the 
required remedial action codified at 30 CFR 925.18(e).

III. OSM's Decision

    Based on our discussions in II.A, we are amending 30 CFR 925.17 to 
clarify our substitution of direct Federal enforcement for parts of the 
Missouri

[[Page 19930]]

program. We are also, based upon our findings in II.B, amending 30 CFR 
925.18 to clarify and to modify the schedule for certain state remedial 
actions.
    We will continue monitoring MLRP's progress in resuming 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 authority will result in additional Federal action.
    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, we 
substituted Federal enforcement for parts of the Missouri program 
effective August 22, 2003. The clarifications and modifications made in 
this document are necessary to ensure the protection of the public 
through effective control of surface coal mining and reclamation 
operations in the State.

IV. Disposition of Comments

    During the public comment period, we received comments from 
Continental Coal, Inc. (CCI) (Administrative Record No. MO-664.12) and 
the Missouri Land Reclamation Commission (Administrative Record Nos. 
664.15). These comments were reviewed and considered by OSM in making 
the decisions announced today. This document provides a summary and 
response to the issues raised by the commenters.
    A. CCI provided several comments on our decision to substitute 
Federal enforcement instead of withdrawing approval of the State 
program.
    Comment 1: CCI's first comment dealt with us not providing 
sufficient justification for not withdrawing approval of the Missouri 
program. CCI felt that Missouri's intent to take steps to resolve the 
funding and staffing issues is not sufficient justification considering 
the budget difficulties in Missouri. CCI stated, ``While the intent of 
the MLRP may be valid, truthful and well-intentioned, it is a function 
of budget realities, legislative desire, and legislative direction that 
will dictate restoration of funding and participation.''
    We agree that no one can predict State legislative actions. 
However, as discussed in the August 22, 2003, final rule (68 FR 50944-
50945), both the MLRP and the Governor of Missouri indicated intent to 
take steps to resolve the funding and staffing issues of the Missouri 
program. We also considered the intent of Congress when making our 
decision to substitute Federal enforcement rather than withdrawing 
program approval. At section 101(f) of SMCRA, Congress expressed its 
belief that because of the diversity in terrain, climate, biologic, 
chemical, and other physical conditions in areas subject to mining 
operations, the primary governmental responsibility for developing, 
authorizing, issuing, and enforcing regulations for surface mining and 
reclamation operations subject to SMCRA should rest with the States. In 
support of this congressional intent, we expressed our belief that it 
is preferable that States hold the primary responsibility for 
regulating surface coal mining and reclamation operations in the August 
22, 2003, final rule (68 FR 50944). As stated in the August 22, 2003, 
final rule (68 FR 50945), 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 authority 
will result in additional Federal action.
    Comment 2: CCI's second comment dealt with us providing the MLRP 
with the authority to take administrative actions to process 
outstanding violations to a final disposition. CCI does not believe the 
Missouri General Assembly provided appropriation for these activities.

For example, your notice provides that: The MLRP will have the 
authority to take administrative actions to process outstanding 
violations to a final disposition (including issuing proposed 
assessments, assessment of penalties, holding of formal conferences 
and hearings, and collecting penalties).
Effectively, there is a presumption that MLRP will misappropriate 
funds to carry forth this action, which has been unappropriated. 
While the cause ``will'' does provide the choice, OSM does not 
provide in its notice the answer to the obvious question, ``What if 
they can't?'' We contend that Missouri cannot spend resources in 
this area without proper appropriation, and for the federal 
government to expect them to do so is inappropriate.

    As clarified in section II above, the MLRP may terminate or 
vacate enforcement actions initiated before August 22, 2003. We 
would inspect the applicable sites and determine whether Federal 
enforcement actions would be issued to replace those terminated or 
vacated by the State. Missouri continues to have authority to 
process outstanding violations to final disposition. Any enforcement 
actions we take will be under the Federal regulations.
    We also clarified in section II above that the bond forfeiture 
reclamation activities that were fully funded include, but are not 
limited to, issuing show-cause orders, revoking permits, initiating 
proceedings to declare bonds forfeited, and administering reclamation 
in lieu of bond forfeiture. Missouri has authority to perform bond 
forfeiture reclamation activities initiated before August 22, 2003, and 
bond forfeiture reclamation activities initiated after August 22, 2003, 
if show-cause orders to revoke permits were initiated before August 22, 
2003, and those actions subsequently result in forfeiture of the bond.
    Comment 3. CCI's third comment concerned our decision to enforce 
Missouri's statutes and regulations. CCI stated, ``We are also troubled 
by OSM's apparent strategy to utilize Missouri statutes (see 30 CFR 
Part 925.17(e)) and Missouri regulations in their reviews.'' CCI does 
not believe that the Federal government can enforce State law. CCI 
pointed out that Missouri law provides unique appeal procedures.
    We disagree that we cannot enforce the Missouri program. The 
Federal regulation at 30 CFR 733.12(f), concerning substituted Federal 
enforcement, requires us to enforce the State program. A State program 
is a compilation of State statutes, regulations, and policy. We may 
also adopt additional regulations if necessary to enforce the State 
program. CCI is correct that Missouri law provides unique appeal 
procedures. It has been our policy since 1984 in substituting Federal 
enforcement to use Federal administrative review regulations in place 
of the State's administrative review process. Therefore, we adopted the 
Federal statutes and regulations pertaining to administrative review by 
reference at 30 CFR 925.17. Also, the Federal regulation at 30 CFR 
733.12(f)(2)(iii) requires us to conduct inspections and issue notices, 
orders and assessments of penalties in accordance with the Federal 
regulations at subchapter L. Therefore, we also adopted these 
regulations by reference at 30 CFR 925.17.
    B. The Commission provided a comment on program funding and 
comments on clarification of the August 22, 2003, Federal Register 
final rule.
    Comment 1. The Commission's first comment concerned State funding 
for Fiscal Year 2004. In its letter of

[[Page 19931]]

November 19, 2003, the Commission stated that the Missouri General 
Assembly decreased the amount of State funding for the State's surface 
coal mining program for Fiscal Year 2004, as compared with Fiscal Year 
2003, but monies were in fact appropriated for the activities that are 
being conducted by the Commission's staff in Fiscal Year 2004.
    We agree with this comment in that funds were appropriated for the 
bond forfeiture reclamation activities that are being conducted by the 
MLRP. These activities include issuing show-cause orders, revoking 
permits, initiating proceedings to declare bonds forfeited, and 
administering reclamation in lieu of bond forfeiture.
    Comment 2. The Commission's second comment concerned clarification 
of our August 22, 2003, decisions on direct Federal enforcement of the 
Missouri program. The Commission stated that it believes that it would 
be beneficial for members of the public to be made aware of the 
clarifications obtained from us by the Commission's staff regarding 
activities to be undertaken directly by us in Missouri during the 
interim period prior to reinstatement of full funding for the Missouri 
program.
    We agree with the Commission that clarification of our August 22, 
2003, substitution of Federal enforcement is needed. Therefore, we 
provided clarification of our actions and the State's remedial actions 
in section II above and in 30 CFR 925.17 and 925.18.

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 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.

[[Page 19932]]

List of Subjects in 30 CFR Part 925

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 5, 2004.
Patricia E. Morrison,
Acting 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. Section 925.17 is amended by revising the introductory paragraph and 
paragraphs (a), (c), (i), and (k) and adding paragraphs (l), (m), and 
(n) 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). For enforcement actions that are terminated or vacated, OSM 
will inspect the sites and if a violation exists, we will take 
appropriate Federal enforcement action. With respect to bond forfeiture 
actions initiated before August 22, 2003, the MLRP will have authority 
to perform bond forfeiture reclamation activities. Bond forfeiture 
reclamation activities include, but are not limited to, issuing show-
cause orders, revoking permits, initiating proceedings to declare bonds 
forfeited, and administering reclamation in lieu of bond forfeiture. 
The MLRP will have authority to perform bond forfeiture reclamation 
activities initiated after August 22, 2003, if show-cause orders to 
revoke permits were initiated before August 22, 2003, and those show-
cause orders subsequently result in forfeiture of the bond.
    (a) OSM will conduct inspections of all coal exploration and 
surface coal mining and reclamation operations, including bond release 
sites, 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, OSM 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. As 
required by 30 CFR 733.12(f)(2)(iii), OSM will conduct inspections to 
determine compliance with the substantive requirements of the approved 
Missouri program.
* * * * *
    (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 847, and 43 CFR part 4 for those 
violations issued by OSM.
* * * * *
    (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, OSM will make the required determinations for the amount of the 
bond to be released and will submit the determinations to the MLRP. The 
MLRP will present OSM's bond release determinations for the amount of 
the bond to be released to the Missouri Land Reclamation Commission, 
who will make a final decision on the release.
* * * * *
    (k) Administrative and judicial review of OSM's enforcement 
actions, performance bond release determinations, and final decisions 
on all other actions, including permitting, certification of blasters, 
and small operator assistance, will be in accordance with 43 CFR part 
4. Administrative and judicial review of final bond release decisions 
made by the Commission for existing performance bonds will be subject 
to the procedures specified in the Missouri program at section 444.875 
of MSCML and 10 CSR 40-7.021(4).
    (l) OSM will review and issue decisions on applications for blaster 
certification in accordance with the approved Missouri program at 
sections 444.855.2(15)(d) and 444.905.4 of MSCML and 10 CSR 40-3.160. 
The applicants must submit OSM Form 74 to OSM when applying for blaster 
certification. Administrative and judicial review of our decisions will 
be in accordance with 43 CFR part 4.
    (m) OSM will review and issue decisions on petitions to have areas 
designated as unsuitable for surface coal mining operations in 
accordance with the approved Missouri program at section 444.890 of 
MSCML and 10 CSR 40-5.020. Judicial review of our decisions will be in 
accordance with sections 526(a)(2) and (b) of SMCRA (30 U.S.C. 
1276(a)(2) and (b)) and 30 CFR 775.13.
    (n) OSM will review and issue decisions on applications for small 
operator assistance in accordance with section 507(c) of SMCRA (30 
U.S.C. 1257(c)) and the approved Missouri program at 10 CSR 40-8.050. 
Administrative and judicial review of our decisions will be in 
accordance with 43 CFR part 4.

0
3. Section 925.18 is amended by removing and reserving paragraphs (a) 
and (e) and revising paragraphs (b), (c), and (d) to read as follows:


Sec.  925.18  State Remedial actions.

* * * * *
    (a) [Removed and reserved]
    (b) In accordance with the requirements of the approved Missouri 
program, the MLRP will complete administrative disposition of all 
enforcement actions that were initiated before the effective date of 
this decision. The MLRP may conduct penalty assessments, hold informal 
conferences and hearings, collect penalties, and terminate or vacate 
enforcement actions.
    (c) Within 30 days of the date on which OSM has received and 
acknowledged an accurate description of available funding for the 
regulatory program, 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:
* * * * *
    (d) Starting on April 1, 2004, the MLRP must submit to OSM a report 
once a month on its progress in obtaining full funding for the Missouri 
program.
    (e) [Removed and reserved]

[FR Doc. 04-8587 Filed 4-14-04; 8:45 am]
BILLING CODE 4310-05-P