[Federal Register Volume 69, Number 177 (Tuesday, September 14, 2004)]
[Rules and Regulations]
[Pages 55353-55356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20663]


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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: Final rule; approval of amendment.

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SUMMARY: We are approving an amendment to the Maryland regulatory 
program (the Maryland 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 (VER). The amendment is intended to 
revise the Maryland program to be consistent with the corresponding 
Federal regulations.

EFFECTIVE DATE: September 14, 2004

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

SUPPLEMENTARY INFORMATION

I. Background on the Maryland Program
II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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. Submission 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.
    We announced receipt of the proposed amendment in the July 19, 
2004, Federal Register (69 FR 42943). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on August 18, 2004. We received responses from one 
Federal Agency.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment. Any revisions we do not specifically discuss 
below concern nonsubstantive wording or editorial changes and are 
approved here without discussion.

[a] Revisions to Maryland's Rules That Are Substantively Identical to 
the Corresponding Provisions of the Federal Regulations

    Maryland proposed revisions to the following rules containing 
language that is substantively identical to the corresponding sections 
of the Federal regulations.

------------------------------------------------------------------------
                                                            Federal
           State rule                   Subject           counterpart
------------------------------------------------------------------------
26.20.10.01B.(7)(a) and (b).....  Definition of       30 CFR 761.5(a),
                                   Valid Existing      (b)(1), (c)
                                   Rights.             (Definition of
                                                       Valid Existing
                                                       Rights).
26.20.10.01-1...................  Demonstration.....  30 CFR 761.5(b)(2)
                                  Standards.........  (Definition of
                                                       Valid Existing
                                                       Rights).
26.20.10.02 and .02C............  Prohibition.......  30 CFR 761.11, and
                                                       761.11(d)(1),
                                                       (d)(2),
                                                       (d)(2)(ii).
26.20.10.03A, B, C, D(2), and     Determination of    30 CFR
 (H).                              Limits and          761.11(d)(2)(i),
                                   Prohibitions.       761.17(a), (b),
                                                       (c) and (d)(1).
26.20.10.04.....................  Exception for       30 CFR 761.12(a).
                                   Existing
                                   Operations.
26.20.10.05A, B, B(1) through     Submission of       30 CFR 761.16(b),
 B(7), B(9), C, D, and E.          Valid Existing      (b)(1) through
                                   Rights              (b)(4).
                                   Determination.
26.20.10.06A through C, D, D(2)   Review of Valid     30 CFR 761.16(c)
 through D(8), D(10), E, and F.    Existing Rights     and (d).
                                   Request.
26.20.10.07.....................  Decision on Valid   30 CFR 761.16(e)
                                   Existing Rights.    and (f).
------------------------------------------------------------------------


[[Page 55354]]

    Because these proposed rules contain language that is substantively 
identical to the corresponding Federal regulations, we find that they 
are no less effective than the corresponding Federal regulations and 
can be approved.

[b] Revisions to Maryland's Rules That Are Not the Same as the 
Corresponding Provisions of the Federal Regulations

    1. COMAR 26.20.10.05B(8) is amended to provide as follows:

(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.

    The counterpart Federal provision at 30 CFR 761.16(b)(1)(viii) does 
not provide a specific time limit for the comment period on the 
validity of the property rights claimed. Rather, 30 CFR 
761.16(b)(1)(viii) provides for ``a reasonable opportunity'' for the 
owners of other property interests in the land to which the request 
pertains to comment on the validity of the property rights claims. We 
find that Maryland's proposed 30-day comment period is reasonable and 
is, therefore, no less effective than the Federal regulations at 30 CFR 
761.16(b)(1)(viii) and can be approved.
    2. COMAR 26.20.10.06D is amended to provide that upon receipt of 
the Bureau notification that the request for a VER determination 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, at D.(1), ``A heading of `Notice of Request for 
Valid Existing Rights Determination.' '' The Federal regulations at 30 
CFR 761.16(d)(1) provide the requirement that a notice be published in 
a newspaper to inform the public of the submittal of a complete 
application for a VER determination and requesting public comment. The 
Federal regulations at 30 CFR 761.16(d)(1) also specify the minimum 
requirements of the notice. There is no Federal counterpart to the 
proposed Maryland provision at 26.20.10.06D(1). However, we find that 
proposed 26.20.10.06D(1) is not inconsistent with the Federal 
regulations at 30 CFR 761.16(d)(1) and can be approved.
    3. COMAR 26.20.10.06D is amended to provide that upon receipt of 
the Bureau notification that the request for a VER determination 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, at D.(9), ``[a] statement that interested persons 
may obtain a 30 day extension of the comment period upon written 
request to the bureau.'' The counterpart Federal provision at 30 CFR 
761.16(d)(1)(vii) provides that the notice shall contain a statement 
that interested persons may obtain a 30-day extension of the comment 
period upon request. The Federal provision at 30 CFR 761.16(d)(1)(vii) 
does not provide that such a request be in writing. However, we find 
that Maryland's requirement that such requests be in writing is 
reasonable and does not render the Maryland program less effective than 
the Federal regulations at 30 CFR 761.16(d)(1)(vii) and can be 
approved.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record Number MD-583-13). There were no comments.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Maryland program (Administrative 
Record Number MD-583-12). We received a response from one Federal 
agency, which is addressed below.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (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 
Maryland 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 MD-583-12). By letter 
dated July 29, 2004, EPA stated that it had reviewed the proposed 
amendment and had determined that there are no apparent inconsistencies 
with the Clean Water Act or other statutes under the jurisdiction of 
the EPA and had no comments on the amendment (Administrative Record 
Number MD-583-14).

V. OSM's Decision

    Based on the above findings, we are approving the amendment that 
Maryland forwarded to us on May 4, 2004.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 920, which codify decisions concerning the Maryland 
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 Maryland's program demonstrate that it 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 Maryland and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    In this rule, the State is adopting valid existing rights standards 
that are similar to the standards in the Federal definition at 30 CFR 
761.5. Therefore, this rule has the same takings implications as the 
Federal valid existing rights regulations. 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.

[[Page 55355]]

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 is that 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 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: August 20, 2004.
Brent Wahlquist,
Brent Wahlquist, Regional Director, Appalachian Regional Coordinating 
Center.

0
For the reasons set out in the preamble, 30 CFR part 920 is amended as 
set forth below:

PART 920--MARYLAND

0
1. The authority citation for part 920 continues to read as follows:

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


0
2. Section 920.15 is amended by adding a new entry to the table in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  920.15  Approval of Maryland regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
May 4, 2004...................  September 14,      COMAR
                                 2004.              26.20.10.01B(7)(a)
                                                    and (b), 01-1, 02,
                                                    02C, 03A, B, C, D(2)
                                                    and H, 04, 05, 06,
                                                    and 07.
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[FR Doc. 04-20663 Filed 9-13-04; 8:45 am]
BILLING CODE 4310-05-P