[Federal Register Volume 69, Number 137 (Monday, July 19, 2004)]
[Proposed Rules]
[Pages 42943-42948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16285]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 920

[MD-054-FOR]


Maryland Regulatory Program

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

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

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SUMMARY: We are announcing receipt of a proposed amendment to the 
Maryland regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). The program amendment 
consists of changes to the Code of Maryland Regulations (COMAR) 
concerning valid existing rights. The amendment is intended to revise 
the Maryland program to be consistent with the corresponding Federal 
regulations.

DATES: We will accept written comments on this amendment until 4 p.m. 
(local time), on August 18, 2004. If requested, we will hold a public 
hearing on the amendment on August 13, 2004. We will accept requests to 
speak at a hearing until 4 p.m. (local time), on August 3, 2004.

ADDRESSES: You should mail or hand-deliver written comments and 
requests to speak at the hearing to Mr. George Rieger at the address 
listed below.
    You may review copies of the Maryland program, this amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
the Appalachian Regional Coordinating Center.
    Mr. George Rieger, Chief, Pittsburgh Field Division, Office of 
Surface Mining Reclamation and Enforcement, Appalachian Regional 
Coordinating Center, 3 Parkway Center, Pittsburgh, PA 15220, Telephone: 
(412) 937-2153. E-mail: [email protected].
    Mr. C. Edmon Larrimore, Program Manager, Mining Program, 1800 
Washington Boulevard, Baltimore, Maryland 21230, Telephone: (410) 537-
3557 or 1-800-633-6101.

FOR FURTHER INFORMATION CONTACT: Mr. George Rieger, Telephone: (412) 
937-2153. Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Maryland Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Maryland 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 Maryland program on December 1, 1980. You 
can find background information on the Maryland program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval in the December 1, 1980, Federal Register (45 FR 79431). You 
can also find later actions concerning Maryland's program and program 
amendments at 30 CFR 920.12, 920.15, and 920.16.

II. Description of the Proposed Amendment

    By letter dated May 4, 2004 (Administrative Record Number MD-583-
11), Maryland sent us an amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.). The amendment revises COMAR provisions concerning 
valid existing rights.
    The full text of the program amendment is available to you to read 
at the locations listed above under ADDRESSES. Specifically, Maryland 
proposes the following amendments to COMAR.

1. COMAR 26.20.10.01.B(7) Definition of Valid Existing Rights

    This definition is amended at paragraph (7)(a)(i) by deleting the 
phrase ``on August 3, 1977'' and by adding in its place the words ``at 
the time the land came under the protection of Environment Article, 
Sec.  15-505(b)(2), Annotated Code of Maryland or Regulation .02 of the 
chapter.''
    Subparagraph (7)(a)(ii) is amended by several deletions and 
additions of language as follows. In the first sentence, the phrase 
``these lands either had'' is revised to read ``the land had.'' The 
following words are added immediately following the revised phrase 
``the land had:'' ``obtained all permits and other authorizations 
required to conduct surface coal mining operations or had.'' Further 
along in the first sentence, ``good faith efforts'' is amended to be 
``good faith effort.'' Also in the first sentence, the words ``State 
and federal permits'' are deleted. The words ``permits and 
authorizations'' are added immediately before the words ``to conduct 
the operations.'' The word ``those'' is deleted and replaced by the 
word ``the.'' The words ``lands, on or before'' are revised to read 
``land before.'' The date ``August 3, 1977'' is deleted, and the 
following words are added in their place: ``the land came under the 
protection of Environment Article, Sec.  15-505(b)(2), Annotated Code 
of Maryland or Regulation .02 of this chapter and at a minimum had 
submitted an application for any permit required under this subtitle.'' 
The word ``coal'' is being deleted following the phrase ``to the Bureau 
that the'' and the word ``land'' is added in its place. The word 
``both'' is deleted from the phrase ``is both needed for.'' The words 
``an on-going'' are being deleted immediately following the words 
``adjacent to.'' The words ``obtained before August 3, 1977'' are being 
deleted at the end of the sentence, and those words are being replaced 
by the following words:

And other authorizations had been obtained, or a good faith attempt 
to obtain all permits and authorizations had been made before the 
land came under the protection of Environment Article Sec.  15-
505(b)(2), Annotated Code of Maryland or Regulation .02 of this 
chapter.

    As amended, COMAR 26.20.10.01.B(7)(a)(ii) provides as follows:

    (ii) The person proposing to conduct surface coal mining 
operations on the land had obtained all permits and other 
authorizations required to conduct surface coal mining operations or 
had made a good faith effort to obtain all necessary permits and 
authorizations to conduct the operations

[[Page 42944]]

on the land before the land came under the protection of Environment 
Article, Sec.  15-505(b)(2), Annotated Code of Maryland or 
Regulation .02 of this chapter and at a minimum had submitted an 
application for any permit required under this subtitle, or can 
demonstrate to the Bureau that the land is needed for and 
immediately adjacent to a surface coal mining operation for which 
all permits were and other authorizations had been obtained, or a 
good faith attempt to obtain all permits and authorizations had been 
made before the land came under the protection of Environment 
Article Sec.  15-505(b)(2), Annotated Code of Maryland or Regulation 
.02 of this chapter.

    Subparagraph (7)(b)(i) is being amended by adding the word 
``properly'' between the word ``A'' and the word ``recorded'' at the 
beginning of the sentence. The word ``recorded'' immediately before the 
word ``easement'' is deleted and is replaced by the word ``or.'' The 
words ``or a permit,'' ``coal haul,'' and ``recorded as of August 3, 
1977; or'' are deleted following the word ``easement.'' New language is 
added at the end of this provision. As amended, Subparagraph (7)(b)(ii) 
provides as follows:

    (i) A properly recorded right-of-way or easement for a road in 
that location existed when the land came under the protection of 
Environment Article, Sec.  15-505(b)(2), Annotated Code of Maryland 
or Regulation .02 of this chapter, and under the document creating 
the right-of-way or easement, and under subsequent conveyances, the 
person has a legal right to use or construct a road across the 
right-of-way or easement for surface coal mining operations;

    Subparagraph (7)(b)(ii) is being amended by deleting the words 
``other'' and ``as of August 3, 1977,'' and adding new language. As 
amended, Subparagraph (7)(b)(ii) provides as follows:

    (ii) Any road in existence when the land upon which it is 
located came under the protection of Environment Article, Sec.  15-
505(b)(2), Annotated Code of Maryland or Regulation .02 of this 
chapter, and the person has a legal right to use the road for 
surface coal mining operations;

    Subparagraphs (7)(b)(iii) and (iv) are new and provide as follows:

    (iii) A valid permit for use or construction of a road in that 
location for surface coal mining operations existed when the land 
came under the protection of Environment Article, Sec.  15-
505(b)(2), Annotated Code of Maryland or Regulation .02 of this 
chapter; or
    (iv) Valid existing rights exist under Section B(7)(a) of this 
regulation.

2. COMAR 26.20.10.01-1 Demonstration Standards

    This provision is new and provides as follows:

.01-1 Demonstration Standards

    A. In order to meet the needed for and adjacent standard in 
Regulation .01B(7)(a)(ii) of this regulation a person shall 
demonstrate that prohibiting expansion of the surface coal mining 
operation onto land under the protection of Environment Article, 
Sec.  15-505(b)(2), Annotated Code of Maryland or Regulation .02 of 
this chapter would unfairly impact the viability of the operation as 
originally planned before the land came under the protection of 
Environment Article, Sec.  15-505(b)(2), Annotated Code of Maryland 
or Regulation .02 of this chapter. Except for operations in 
existence before August 3, 1977, or for which a good faith effort to 
obtain all necessary permits had been made before August 3, 1977, 
this standard does not apply to lands already under the protection 
of Environment Article, Sec.  15-505(b)(2), Annotated Code of 
Maryland or Regulation .02 of this chapter when the Bureau approved 
the permit for the original operation or when the good faith effort 
to obtain all necessary permits for the original operation was made.
    B. In evaluating whether a person meets the standard in Sec.  A 
of this regulation, the Bureau may consider factors such as:
    (1) The extent to which the coal supply contracts or other legal 
and business commitments that predate the time the land came under 
the protection of Environment Article, Sec.  15-505(b)(2), Annotated 
Code of Maryland or Regulation .02 of this chapter depend upon use 
of that land for surface coal mining operations;
    (2) The extent to which plans used to obtain financing for the 
operation before the land came under the protection of Environment 
Article, Sec.  15-505(b)(2), Annotated Code of Maryland or 
Regulation .02 of this chapter rely upon the use of that land for 
surface coal mining operations;
    (3) The extent to which investments in the operation before the 
land came under the protection of Environment Article, Sec.  15-
505(b)(2), Annotated Code of Maryland or Regulation .02 of this 
chapter rely upon the use of that land for surface coal mining 
operations; or
    (4) Whether the land lies within the areas identified on the map 
required under COMAR 26.20.02.10A(6) before the land came under the 
protection of Regulation .02 of this chapter.

3. COMAR 26.20.10.02 Prohibition

    The introductory paragraph to this provision is amended by adding 
the words ``as determined under Regulation .07 of this chapter, or an 
exception for existing operation under Regulation .04 of this chapter'' 
immediately after the words ``valid existing rights.'' In addition, the 
words ``after August 3, 1977'' and ``unless those operations were being 
conducted on August 3, 1977'' are deleted. As amended, the introductory 
paragraph to this provision provides as follows:

    Subject to valid existing rights, as determined under Regulation 
.07 of this chapter, or an exception for existing operations under 
Regulation .04 of this chapter, surface coal mining operations may 
not be conducted on any of the following lands.

    Subparagraph 26.20.10.02.C.(1) is amended by deleting the words 
``join this'' and replacing those words with the words ``are located 
within the.'' Also, the words ``in order to join the public road'' are 
added immediately following the words ``right-of-way line.'' As 
amended, Subparagraph 26.20.10.02.C.(1) provides as follows:

    (1) Where mine access roads or haulage roads are located within 
the right-of-way line in order to join the public road, or

    Subparagraph 26.20.10.02.C.(2) is amended by adding the word 
``closed'' immediately following the word ``relocated.''

4. COMAR 26.20.10.03 Determination of Limits and Prohibitions

    Subparagraph 26.20.10.03.A. is amended by adding the words 
``application for a'' immediately following the word ``complete.'' In 
addition, the word ``application'' is deleted immediately following the 
word ``permit'' and the words ``for a surface coal mining operation or 
for a revision of the boundaries of a surface coal mining operation 
permit'' are added in place of the deleted word. Also, the words 
``review the application to'' are added immediately following the words 
``the Bureau shall.'' As amended, Subparagraph 26.20.10.03.A. provides 
as follows:

    A. Upon receipt of a complete application for a permit for a 
surface coal mining operation or for a revision of the boundaries of 
a surface coal mining operation permit, the Bureau shall review the 
application to determine whether the proposed surface coal mining 
operations are limited or prohibited under this chapter.

    Subparagraph 26.20.10.03.B. is amended by adding the words ``any 
portion of'' immediately following the words ``Bureau shall reject.'' 
In addition, the words ``if the applicant has no valid existing rights 
for the area, or if the operation did not exist on August 3, 1977'' are 
deleted and replaced by new language. As amended, Subparagraph 
26.20.10.03.B. provides as follows:

    B. If the proposed operation is to be located on any lands where 
surface coal mining is prohibited, the Bureau shall reject any 
portion of the application that would locate surface coal mining 
operations on land protected under Regulation .02 of this chapter 
unless:
    (1) The site qualifies for an exception for existing operations 
under Regulation .04 of this chapter;

[[Page 42945]]

    (2) The applicant has valid existing rights for the land as 
determined under Regulation .07 of this chapter;
    (3) The applicant obtains a waiver or exception from the 
prohibitions of Regulation .02C, D, and E of this chapter in 
accordance with Sec.  D, E, and F of this regulation; or
    (4) For land protected by Regulation .02B of this chapter, both 
the Bureau and the agency with jurisdiction over the park or place 
jointly approve the proposed operation in accordance with Sec.  H of 
this regulation.

    Subparagraph 26.20.10.03.C. is amended by revising the following 
regulation citations: ``.02E and F'' is changed to ``.02F and G.''
    Subparagraph 26.20.10.03.D(2) is amended by adding the words ``or 
close'' immediately following the words ``would relocate.'' In 
addition, the words ``and provide a public comment period and 
opportunity to request a public hearing'' are added at the end of this 
provision. As amended, Subparagraph 26.20.10.03.D(2) provides as 
follows:

    (2) Shall require the applicant to specifically advertise that 
the proposed surface mining operation would relocate, or close a 
public road or would be conducted within 100 feet of the right-of-
way of a public road; and provide a public comment period and 
opportunity to request a public hearing;

    Subparagraph 26.20.10.03.H. is amended by deleting the word 
``public'' immediately following the words ``adversely affect any'' and 
adding in its place, the words ``publicly owned.'' In addition, the 
words ``publicly owned'' are deleted immediately before the words 
``places included on.''

5. COMAR 26.20.10.04 Exception for Existing Operations

    This provision is new and provides as follows:

.04 Exception for Existing Operations

    The prohibitions and limitations of Regulation .02 of this 
chapter do not apply to surface coal mining operations for which a 
permit issued by the Bureau under the Regulatory Program exists when 
the land comes under the protection of Regulation .02 of this 
chapter. This exception only applies to lands within the permit area 
as it exists when the land comes under the protection of Regulation 
.02 of this chapter.

6. COMAR 26.20.10.05 Submission of Valid Existing Rights Determination

    This provision is new and provides as follows:

.05 Submission of Valid Existing Rights Determination

    A. A person that intends to conduct surface coal mining 
operations on the basis of valid existing rights under Regulation 
.02 of this chapter shall submit a request for a valid existing 
rights determination to the Bureau. This request may be submitted 
before preparing and submitting an application for a permit for the 
land.
    B. A request for a valid existing rights determination that 
relies on the good faith/all permits standard or the needed for and 
adjacent standard in Regulation .01B(7)(a)(ii) of this chapter shall 
provide a property rights demonstration. The demonstration shall 
include:
    (1) A legal description of the land to which the request 
pertains;
    (2) Complete documentation of the character and extent of the 
requestor's current interests in the surface and mineral estates of 
the land to which the request pertains;
    (3) A complete chain of title for the surface and mineral 
estates of the land to which the request pertains;
    (4) A description of the nature and effect of each title 
instrument that forms the basis of the request, including any 
provision pertaining to the type or method of mining or mining-
related surface disturbances and facilities;
    (5) A description of the type and extent of surface coal mining 
operations that the requestor claims the right to conduct, including 
the method of mining, any mining-related surface activities and 
facilities and an explanation of how these operations would be 
consistent with State property law;
    (6) Complete documentation of the nature and ownership, as of 
the date that the land came under the protection of Environment 
Article, Sec.  15-505(b)(2), Annotated Code of Maryland or 
Regulation .02 of this chapter, of all property rights for the 
surface and mineral estates of the land to which the request 
pertains;
    (7) Names and addresses of the current owners of the surface and 
mineral estates of the land to which the request pertains;
    (8) Documentation that, if the coal interests have been severed 
from other property interests, that the owners of other property 
interests in the land to which the request pertains have been 
notified and provided an opportunity to comment on the validity of 
the property rights claimed in the request within 30 days of the 
notice; and
    (9) Any comments received in response to the notification 
required by paragraph (8) of this section.
    C. A request for a valid existing rights determination that 
relies on the good faith/all permits standard in Regulation 
.01B(7)(a)(ii) of this chapter shall contain:
    (1) All of the information required by Sec.  B of this 
regulation;
    (2) Approval and issuance dates and identification numbers for 
any permits, licenses, and authorizations that were obtained before 
the land came under the protection of Environment Article, Sec.  15-
505(b)(2), Annotated Code of Maryland or Regulation .02 of this 
chapter;
    (3) Application dates and identification numbers for any 
permits, licenses, and authorizations for which applications were 
submitted before the land came under the protection of Environment 
Article, Sec.  15-505(b)(2), Annotated Code of Maryland or 
Regulation .02 of this chapter; and
    (4) An explanation of any other good faith effort made to obtain 
the necessary permits, licenses, and authorizations as of the date 
that the land came under the protection of Environment Article, 
Sec.  15-505(b)(2), Annotated Code of Maryland or Regulation .02 of 
this chapter.
    D. A request for a valid existing rights determination that 
relies upon the needed for and adjacent standard in Regulation 
.01B(7)(a)(ii) of this chapter shall contain:
    (1) All of the information required by Sec.  B of this 
regulation; and
    (2) An explanation of how and why the land is needed for and 
immediately adjacent to the operation upon which the request is 
based, including the demonstration required by Regulation .01-1 of 
this chapter that prohibiting expansion of the operation onto the 
land would unfairly impact the viability of the operation as 
originally planned before the land came under the protection of 
Environment Article, Sec.  15-505(b)(2), Annotated Code of Maryland 
or Regulation .02 of this chapter.
    E. A request for a valid existing rights determination that 
relies upon one of the standards for roads in Regulation .01B(7)(b) 
of this chapter shall contain satisfactory documentation that:
    (1) The road existed when the land on which it is located came 
under the protection of Environment Article, Sec.  15-505(b)(2) or 
Regulation .02 of this chapter and the requestor has a legal right 
to use the road for surface coal mining operations;
    (2) A properly recorded right of way or easement for a road in 
that location existed when the land came under the protection of 
Environment Article, Sec.  15-505(b)(2), Annotated Code of Maryland 
or Regulation .02 of this chapter and under the document creating 
the right of way or easement and under any subsequent conveyances 
the requestor has a legal right to use or construct a road across 
that right of way or easement to conduct surface coal mining 
operations; or
    (3) A valid permit for use or construction of a road in that 
location for surface coal mining operations existed when the land 
came under the protection of Environment Article, Sec.  15-
505(b)(2), Annotated Code of Maryland or Regulation .02 of this 
chapter.

7. COMAR 26.20.10.06 Review of Valid Existing Rights Request

    This provision is new and provides as follows:

.06 Review of Valid Existing Rights Request

    A. Upon receipt of a request for a valid existing rights 
determination, the Bureau shall complete an initial review to 
determine if the request includes all applicable requirements of 
Regulation .05 of this chapter. If the request does not include all 
of the applicable information, the Bureau shall return the request 
with notification of the missing information.
    B. If the request is not returned to the Bureau within 30 days 
after receipt of the notification in Sec.  A of this regulation, the 
Bureau shall issue a determination that valid existing rights has 
not been demonstrated in accordance with Regulation .07 of this 
chapter.

[[Page 42946]]

    C. When the Bureau determines that a request for a valid 
existing rights determination is complete, the Bureau shall:
    (1) Notify the requestor, in writing, that the application is 
complete and require the requestor to publish the notice required by 
Sec.  D of this regulation; and
    (2) Provide a copy of the notice required by Sec.  C(1) to:
    (a) The Bureau of Mines,
    (b) All reasonably locatable owners of surface and mineral 
estates in the land included in the request, and
    (c) The owner of the feature causing the land to come under the 
protection of Regulation .02 of this chapter, and when applicable, 
the agency with primary jurisdiction over the feature with respect 
to the values causing the land to come under the protection of 
Regulation .02 of this chapter.
    D. Upon receipt of the Bureau notification that the request is 
complete, the requestor shall cause a notice to appear in a 
newspaper of general circulation in the county in which the land is 
located. The notice shall contain:
    (1) A heading of ``Notice of Request for Valid Existing Rights 
Determination';
    (2) The name and address of the requestor;
    (3) The location of the land to which the request pertains;
    (4) A description of the type of surface coal mining operations 
planned;
    (5) A reference to and brief description of the applicable 
standard(s) under the definition of valid existing rights in 
Regulation .01B(7) of this chapter that contains the information 
required by Sec.  E of this regulation;
    (6) A statement that the Bureau will not make a decision on the 
merits of the request if, by the close of the comment period of the 
notice, a person with a legal interest in the land initiates 
appropriate legal action to resolve any differences concerning the 
validity or interpretation of the deed, lease, easement, or other 
documents that form the basis of the claim for valid existing rights 
if the request relies upon one or more of the standards in 
Regulation .01B(7)(a)(ii) and .01B(7)(b)(i)and (ii) of this chapter;
    (7) A description of the procedures the Bureau will follow in 
processing the request;
    (8) The closing date of a comment period that is a minimum of 30 
days after publication of the notice;
    (9) A statement that interested persons may obtain a 30 day 
extension of the comment period upon written request to the Bureau; 
and
    (10) The name and address of the Bureau office where a copy of 
the request is available for public inspection and where comments 
and requests for extension of the comment period may be sent.
    E. The reference and description required by Sec.  D(5) of this 
regulation shall include a:
    (1) Description of the property rights claimed and the basis for 
the claim if the request relies upon the good faith/all permits 
standard or the needed for and adjacent standard in Regulation 
.01B(7)(a)(ii) of this regulation;
    (2) Description of the basis for the claim that the road existed 
when the land came under the protection of Environment Article, 
Sec.  15-505(b)(2), Annotated Code of Maryland or Regulation .02 of 
this chapter and that a legal right exists to use the road for 
surface coal mining operations if the request relies upon the 
standard in Regulation .01B(7)(b)(ii) of this chapter; or
    (3) Description of the basis for the claim that a properly 
recorded right of way or easement for a road in that location 
existed when the land came under the protection of Environment 
Article, Sec.  15-505(b)(2), Annotated Code of Maryland or 
Regulation .02 of this chapter and under the document creating the 
right of way or easement and under any subsequent conveyances a 
legal right exists to use or construct a road across the right of 
way or easement to conduct surface coal mining operations, if the 
request relies upon the standard in Regulation .01B(7)(b)(i) of this 
regulation.
    F. The notice required by Sec.  C(2) of this regulation shall 
provide a 30 day comment period starting from the date of service 
and specify that an additional 30 days is available upon written 
request. The Bureau may grant additional time for good cause upon 
request and may not necessarily consider comments received after the 
closing date of the comment period.

8. COMAR 26.20.10.07 Decision on Valid Existing Rights

    This provision is new and provides as follows:

.07 Decision on Valid Existing Rights

    A. The Bureau shall review the information submitted under 
Regulation .05 of this chapter, the comments received under 
Regulation .06 of this chapter, and any other reasonably available 
information to determine whether the record is sufficiently complete 
and adequate to support a decision on the merits of the request for 
valid existing rights. The Bureau shall notify the applicant, in 
writing, if it determines the record is inadequate providing an 
explanation of the inadequacy and requesting the submittal of 
additional information that is necessary to complete the record. The 
request shall require the requested information to be submitted 
within 30 days from receipt of the request.
    B. When the record is complete and adequate, the Bureau shall 
determine whether the request submitted under Regulation .05 of this 
chapter has demonstrated valid existing rights. The Bureau's 
decision shall be in writing and contain findings of fact and 
conclusions sufficient to justify the decision.
    C. The Bureau shall issue a determination that valid existing 
rights has not been demonstrated if the property rights claims are 
the subject of pending litigation in a court or administrative body 
with jurisdiction over the property rights in question. The 
determination shall be made without prejudice. The request may be 
refilled when the property rights dispute is finally adjudicated. 
The section only applies to legal action that is initiated as of the 
closing date of the comment period under Regulation .06D and F of 
this chapter.
    D. If the record of the request indicates disagreement as to the 
accuracy of the property rights claims, but is not the subject of 
any pending litigation, the Bureau shall evaluate the merits of the 
information in the record and determine whether a demonstration of 
valid existing rights has been made. The Bureau shall issue a 
decision in accordance with Sec.  B of this regulation.
    E. The Bureau shall issue a determination that valid existing 
rights have not been demonstrated if any of the information 
requested under Sec.  A of this regulation is not submitted within 
30 days from receipt of the request. This determination is made 
without prejudice and a revised request may be refiled at any time.
    F. After making a determination under this regulation, the 
Bureau shall:
    (1) Require the person requesting the determination to publish 
notice in a newspaper of general circulation in the county in which 
the land is located and provide a copy of the published notice to 
the Bureau; and
    (2) Provide a copy of the determination and an explanation of 
appeal rights to:
    (a) The person requesting the determination;
    (b) The owner or owners of the land to which the determination 
applies;
    (c) The owners of the feature causing the land to come under the 
protection of Regulation .01B(7) of this chapter; and
    (d) When applicable, to the agency with primary jurisdiction 
over the feature with respect to the values that caused the land to 
come under the protection of Regulation .01B(7) of this chapter.
    G. A determination by the Bureau on valid existing rights is 
subject to administrative and judicial review under COMAR 26.20.06.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Maryland program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We may not consider or respond to your 
comments when developing the final rule if they are received after the 
close of the comment period (see DATES). We will make every attempt to 
log all comments into the administrative record, but comments delivered 
to an address other than the Appalachian Regional Coordinating Center 
may not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII, Word file avoiding the 
use of special characters and any form of encryption. Please also 
include ``Attn:

[[Page 42947]]

SATS NO. MD-054-FOR'' and your name and return address in your Internet 
message. If you do not receive a confirmation that we have received 
your Internet message, contact the Appalachian Regional Coordinating 
Center at (412) 937-2153.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on 
August 3, 2004. If you are disabled and need special accommodations to 
attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
will be open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12630--Takings

    In this rule, the State is adopting valid existing rights standards 
that are similar to the standards in the Federal definition at 30 CFR 
761.5. Therefore, this rule has the same takings implications as the 
Federal valid existing rights. The takings implications assessment for 
the Federal valid existing rights rule appears in Part XXIX.E of the 
preamble to that rule. See 64 FR 70766, 70822-27, December 17, 1999.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempt from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 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. 
The basis for this determination in our decision is on a State 
regulatory program and does not involve a Federal regulation involving 
Indian lands.

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

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

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5

[[Page 42948]]

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 920

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 27, 2004.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 04-16285 Filed 7-16-04; 8:45 am]
BILLING CODE 4310-05-P