[Federal Register Volume 70, Number 116 (Friday, June 17, 2005)]
[Proposed Rules]
[Pages 35199-35204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11979]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-122-FOR]


Virginia 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 amendment.

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SUMMARY: We are announcing receipt of a proposed amendment to the 
Virginia regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). The program amendment 
revises the Virginia Coal Surface Mining Reclamation Regulations. The 
amendment reflects changes in renumbering of the Virginia Code section 
references of the Virginia Administrative Process Act; clarifies the 
filing of requests for formal hearing and judicial review; revisions of 
the Virginia rules to be consistent with amendments to the Federal 
rules; revisions to allow approval of natural stream restoration 
channel design; regulation changes to implement requirements of 
Virginia HB 2573 (enacted as emergency legislation); and corrections of 
typographical errors.

DATES: We will accept written comments on this amendment until 4 p.m. 
(local time), on July 18, 2005. If requested, we will hold a public 
hearing on the amendment on July 12, 2005. We will accept requests to 
speak at the hearing until 4 p.m. (local time), on July 5, 2005.

ADDRESSES: You may submit comments, identified by VA-122-FOR, by any of 
the following methods:
     E-mail: [email protected]. Include VA-122-FOR in the subject 
line of the message.
     Mail/Hand Delivery: Mr. Robert A. Penn, Director, Big 
Stone Gap Field Office, Office of Surface Mining Reclamation and 
Enforcement, 1941 Neeley Road, Suite 201, Compartment 116, Big Stone 
Gap, Virginia 24219.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading in the 
SUPPLEMENTARY INFORMATION section of

[[Page 35200]]

this document. You may also request to speak at a public hearing by any 
of the methods listed above or by contacting the individual listed 
under FOR FURTHER INFORMATION CONTACT.
    Docket: You may review copies of the Virginia 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 
OSM's Big Stone Gap Field Office.
    Mr. Robert A. Penn, Director, Big Stone Gap Field Office, Office of 
Surface Mining Reclamation and Enforcement, 1941 Neeley Road, Suite 
201, Compartment 116, Big Stone Gap, Virginia 24219, Telephone: (540) 
523-4303. E-mail: [email protected].
    Mr. Leslie S. Vincent, Virginia Division of Mined Land Reclamation, 
P.O. Drawer 900, Big Stone Gap, Virginia 24219, Telephone: (540) 523-
8100. E-mail: [email protected].

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

SUPPLEMENTARY INFORMATION:

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

I. Background on the Virginia Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``* * * a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Virginia program on December 15, 1981. You 
can find background information on the Virginia program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval of the Virginia program in the December 15, 1981, Federal 
Register (46 FR 61088). You can also find later actions concerning 
Virginia's program and program amendments at 30 CFR 946.12, 946.13, and 
946.15.

II. Description of the Proposed Amendment

    By letter dated May 9, 2005 (Administrative Record Number VA-1048), 
the Virginia Department of Mines, Minerals and Energy (DMME) submitted 
an amendment to the Virginia program. In its letter, the DMME stated 
that the program amendment revises Virginia Coal Surface Mining 
Reclamation Regulations to reflect the changes in the renumbering of 
the Virginia Code section references of the Virginia Administrative 
Process Act; clarifies the filing of requests for formal hearing and 
judicial review; revises the Virginia rules to make them consistent 
with amendments to the Federal rules; revises its rules to allow 
approval of natural stream restoration channel design; changes its 
regulation to implement requirements of Virginia HB 2573 (enacted as 
emergency legislation in Chapter 3 of the 2005 Virginia Acts of 
Assembly); and corrects typographical errors. Specifically, the 
following amendments are proposed:
    1. 4 VAC 25-130-700.12 Petitions to initiate rulemaking.
    The proposed amendment revises subsection (e) by changing the 
citation of the Virginia Code section from ``9-6.14:1'' to ``2.2-
4000A.''
    2. 4 VAC 25-130-773.21 Improvidently issued permits; Rescission 
procedures.
    The proposed amendment revises subsection (c), right to appeal, by 
changing the citation of Virginia Code section from ``9-6.14:1'' to 
``2.2-4000A.''
    3. 4 VAC 25-130-775.11 Administrative Review.
    The proposed amendment revises subsection (b)(1) by changing the 
citation of the Virginia Code section from ``9-6.14:12'' to ``2.2-
4020.'' In addition, new subsection (d) is added to provide as follows:

    (d) All requests for hearing or appeals for review and 
reconsideration made under this section shall be filed with the 
Director, Department of Mines, Minerals and Energy, Post Office 
Drawer 900, Big Stone Gap, Virginia 24219.

    4. 4 VAC 25-130-775.13 Judicial Review.
    New subsection (c) is added to provide as follows:

    (c) All notices of appeal for judicial review of a Hearing 
Officer's final decision, or the final decision on review and 
reconsideration, shall be filed with the Director, Department of 
Mines, Minerals and Energy, Post Office Drawer 900, Big Stone Gap, 
Virginia 24219.

    5. 4 VAC 25-130-784.20 Subsidence Control Plan.
    Subsection (a)(3) is amended by deleting language concerning 
presubsidence survey requirements. The DMME stated that the provision 
was amended to delete those requirements that are counterpart to 
Federal regulations that were suspended effective December 22, 1999 (64 
FR 71652). The following language is being deleted: ``condition of all 
noncommercial buildings or occupied residential dwellings and 
structures related thereto, that may be materially damaged or for which 
the reasonably foreseeable use may be diminished by subsidence, within 
the area encompassed by the applicable angle of draw; as well as a 
survey of the.'' In addition, the following language is being deleted: 
``premining condition or value of such noncommercial buildings or 
occupied residential dwellings and structures related thereto and 
the.'' As revised, Subsection (a)(3) provides as follows:

    (3) A survey of the quantity and quality of all drinking, 
domestic and residential water supplies within the permit area and 
adjacent area that could be contaminated, diminished, or interrupted 
by subsidence. If the applicant cannot make this survey because the 
owner will not allow access to the site, the applicant will notify 
the owner in writing of the effect that denial of access will have 
as described in 4VAC25-130-817.121(c)(4). The applicant must pay for 
any technical assessment or engineering evaluation used to determine 
the quantity and quality of drinking, domestic, or residential water 
supplies. The applicant must provide copies of the survey and any 
technical assessment or engineering evaluation to the property owner 
and the division.

    6. 4 VAC 25-130-800.51 Administrative review of performance bond 
forfeiture.
    Subsection (c)(1) is amended by changing the citation of the 
Virginia Code sections from ``9-6.14:12'' to ``2.2-4020.''
    Subsection (e) is amended by clarifying that the ``Division of 
Mined Land Reclamation'' is now the ``Department of Mines, Minerals and 
Energy.'' As amended, Subsection (e) provides as follows:

    (e) All requests for hearing, or appeals for review and 
reconsideration made under this section; and all notices of appeal 
for judicial review of a Hearing Officer's final decision, or the 
final decision on review and reconsideration shall be filed with the 
Director, Department of Mines, Minerals and Energy, Post Office 
Drawer 900, Big Stone Gap, Virginia 24219.

    7. 4 VAC 25-130-816.11 Signs and markers.
    New Subsection (a)(4) is added and existing (a)(4) is redesignated 
as (a)(5).

[[Page 35201]]

As amended, Subsection (a) provides as follows:

    (a) Specifications. Signs and markers required under this Part 
shall--
    (1) Be posted, maintained, and removed by the person who 
conducts the surface mining activities;
    (2) Be of a uniform design throughout the operation that can be 
easily seen and read;
    (3) Be made of durable material;
    (4) For permit boundary markers on areas that are located on 
steep slopes above private dwellings or other occupied buildings, be 
made of or marked with fluorescent or reflective paint or material; 
and
    (5) Conform to local ordinances and codes.

    8. 4 VAC 25-130-816.43 Diversions.
    New Subsection (d) is added, and existing Subsection (d) is 
redesignated as Subsection (e). New Subsection (d) provides as follows:

    (d) In lieu of the requirements of paragraphs (a)(2) through 
(a)(9), (b)(2) through (b)(6) and (c)(1) through (c)(3) of this 
section, a natural stream restoration channel design approved by the 
U.S. Army Corps of Engineers as part of an approved U.S. Army Corps 
of Engineers permit shall be deemed to meet the requirements of this 
section.

    9. 4 VAC 25-130-816.64 Use of explosives; blasting schedule.
    New Subsection (a)(4) concerning seismic monitoring is added and 
provides as follows:

    (4) Seismic monitoring shall be conducted when blasting 
operations on coal surface mining operations are conducted within 
1,000 feet of a private dwelling or other occupied building.

    10. 4 VAC 25-130-816.105 Backfilling and grading; thick overburden.
    This proposed change is intended to revise Virginia's rule to be 
consistent with the counterpart Federal rule. Thin overburden is 
addressed under Virginia rule 4 VAC 25-130-816.104. This provision is 
amended as follows: The term ``Thin'' is deleted and replaced by the 
term ``Thick'' in subsection (a); the term ``insufficient'' is deleted 
and replaced by ``more than sufficient'' in subsection (a); the term 
``less'' is deleted and replaced by the term ``more'' in subsection 
(a); and the term ``thin'' is deleted and replaced by the term 
``thick'' in subsection (b). As amended this provision provides as 
follows:

    (a) Thick overburden exists when spoil and other waste materials 
available from the entire permit area is more than sufficient to 
restore the disturbed area to its approximate original contour. More 
than sufficient spoil and other waste materials occur where the 
overburden thickness times the swell factor, plus the thickness of 
other available waste materials, is more than the combined thickness 
of the overburden and coal bed prior to removing the coal, so that 
after backfill and grading the surface configuration of the 
reclaimed area would not:
    (1) Closely resemble the surface configuration of the land prior 
to mining; or
    (2) Blend into and complement the drainage pattern of the 
surrounding terrain.
    (b) Where thick overburden occurs within the permit area, the 
permittee at a minimum shall:
    (1) Restore the approximate original contour and then use the 
remaining spoil and other waste materials to attain the lowest 
practicable grade, but not more than the angle of repose;
    (2) Meet the requirements of 4VAC25-130-816.102(a)(2) through 
(j); and
    (3) Dispose of any excess spoil in accordance with 4VAC25-130-
816.71 through 4VAC25-130-816.75.

    11. 4 VAC 25-130-817.11 Signs and markers.
    New Subsection (a)(4) is added and existing subsection (a)(4) is 
redesignated as (a)(5). New subsection (a)(4) provides as follows:

    (a) Specifications. Signs and markers required under this Part 
shall --
    (4) For permit boundary markers on areas that are located on 
steep slopes above private dwellings or other occupied dwellings, be 
made of or marked with fluorescent or reflective paint or material; 
and

    12. 4 VAC 25-130-817.43 Diversions.
    New Subsection (d) is added and existing Subsection (d) is 
redesignated as Subsection (e). As amended, new Subsection (d) provides 
as follows:

    (d) In lieu of the requirements of paragraphs (a)(2) through 
(a)(9), (b)(2) through (b)(6) and (c)(1) through (c)(3) of this 
section, a natural stream restoration channel design approved by the 
U.S. Army Corps of Engineers as part of an approved U.S. Army Corps 
of Engineers permit shall be deemed to meet the requirements of this 
section.

    13. 4 VAC 25-130-817.64 Use of explosives; general performance 
standards.
    New Subsection (d) is added and provides as follows:

    (d) Seismic monitoring shall be conducted when blasting 
operations on coal surface mining operations are conducted within 
1,000 feet of a private dwelling or other occupied building.

    14. 4 VAC 25-130-817.121 Subsidence control.
    This provision is amended by deleting Subsections (c)(4)(i)-(iv) 
and redesignating Subsection (c)(4)(v) as subsection (c)(4). The DMME 
stated that this provision was amended to delete those requirements 
that are counterpart to Federal regulations that were suspended 
effective December 22, 1999 (64 FR 71652). This provision had created a 
rebuttable presumption that underground mining caused subsidence, where 
the subsidence damage occurred within the angle of draw. As amended, 
Subsection (c)(4) provides as follows:

    (4) Information to be considered in determination of causation. 
In a determination whether damage to protected structures was caused 
by subsidence from underground mining, all relevant and reasonably 
available information will be considered by the division.

    15. 4 VAC 25-130-842.15 Review of decision not to inspect or 
enforce.
    The proposed amendment revises Subsection (d) by changing the 
citation of the Virginia Code section from ``9-6.14:1'' to ``2.2-
4000A.''
    16. 4 VAC 25-130-843.12 Notices of violation.
    The proposed amendment revises Subsection (j) by changing the 
citation of the Virginia Code section from ``9-6.14:1'' to ``2.2-
4000A.''
    17. 4 VAC 25-130-843.13 Suspension or revocation of permits; 
pattern of violations.
    The proposed amendment revises Subsection (b) by changing the 
citation of the Virginia Code section from ``9-6.14:12'' to ``2.2-
4020.'' Subsection (e) is amended by clarifying that the ``Division of 
Mined Land Reclamation'' is now the ``Department of Mines, Minerals, 
and Energy.'' As amended, Subsection (e) provides as follows:

    (e) All requests for hearing, or appeals for review and 
reconsideration made under this section; and all notices of appeal 
for judicial review of a Hearing Officer's final decision, or the 
final decision on review and reconsideration shall be filed with the 
Director, Department of Mines, Minerals and Energy, Post Office 
Drawer 900, Big Stone Gap, Virginia 24219.

    18. 4 VAC 25-130-843.15. Informal public hearing.
    The amendment revises Subsection (c) by changing the citation of 
the Virginia Code section from ``9-6.14:11'' to ``2.2-4019.''
    19. 4 VAC 25-130-843.16 Formal review of citations.
    Subsection (e) is amended by clarifying that the ``Division of 
Mined Land Reclamation'' is now the ``Department of Mines, Minerals, 
and Energy.'' As amended, Subsection (e) provides as follows:

    (e) All requests for hearing before a Hearing Officer, or 
appeals for review and reconsideration, made under this section, and 
all notices of appeal for judicial review of a Hearing Officer's 
final decision or a final decision on review and reconsideration, 
shall be filed with the Director, Department of Mines, Minerals and 
Energy, Post Office Drawer 900, Big Stone Gap, Virginia 24219.

    20. 4 VAC 25-130-845.13 Point System.
    Subsections (c)(1) and (d) are amended to correct typographical 
errors.

[[Page 35202]]

At Subsection (c)(1), the phrase ``(a) and'' is added immediately 
before ``(b),'' and the phrase ``and (c)'' is deleted. As amended, 
Subsection (c)(1) provides as follows:

    (c) Credit for good faith in attempting to achieve compliance.
    (1) The division shall deduct from the total points assigned 
under Subsections (a) and (b) points based on the demonstrated good 
faith of the permittee in attempting to achieve rapid compliance 
after notification of the violation. Points shall be deducted as 
follows.

    Subsection (d) is amended by adding ``(a),'' immediately before 
``(b);'' adding ``and'' immediately following ``(b),'' and deleting 
``and (d)'' immediately following (c). As amended, the language of 
Subsection (d) provides as follows:

    (d) Determination of base penalty. The division shall determine 
the base amount of any civil penalty by converting the total number 
of points calculated under Subsections (a), (b), and (c), of this 
section to a dollar amount, according to the following schedule.

    Subsection (e), concerning credit for additional penalties for 
previous history is amended at (e)(1) by adding the words ``[e]xcept 
for a violation that resulted in personal injury or fatality to any 
person.'' As amended, Subsection (e)(1) provides as follows:

    (1) Except for a violation that resulted in personal injury or 
fatality to any person, the division shall reduce the base penalty 
determined under Subsection (d) by 10% if the permittee has had no 
violations cited by the division within the preceding 12-month 
period.

    Subsection (f), concerning maximum penalty which the division may 
assess, is amended by adding the words ``except that if the violation 
resulted in a personal injury or fatality to any person, then the civil 
penalty determined under Subsection (d) shall be multiplied by a factor 
of twenty (20), not to exceed $70,000.'' As amended, Subsection (f) 
provides as follows:

    (f) The maximum penalty which the division may assess under this 
section for each cessation order or notice of violation shall be 
$5,000, except that if the violation resulted in a personal injury 
or fatality to any person, then the civil penalty determined under 
Subsection (d) shall be multiplied by a factor of twenty (20), not 
to exceed $70,000. As provided in 4 VAC 25-130-845.15, each day of 
continuing violation may be deemed a separate violation for the 
purpose of assessing penalties.

    21. 4 VAC 25-130-845.15 Assessment of separate violations for each 
day.
    Subsection (a) is amended in the last sentence by adding the words 
``or more'' immediately following the words ``a penalty of $5,000.'' As 
amended, Subsection (a) provides as follows:

    (a) The division may assess separately a civil penalty for each 
day from the date of issuance of the notice of violation or 
cessation order to the date set for abatement of the violation. In 
determining whether to make such an assessment, the division shall 
consider the factors listed in 4 VAC 25-130-845.13 and may consider 
the extent to which the person to whom the notice or order was 
issued gained any economic benefit as a result of a failure to 
comply. For any violation which continues for two or more days and 
which has been assigned a penalty of $5,000 or more under 4 VAC 25-
130-845.13, the division shall assess a penalty for a minimum of two 
separate days.

    22. 4 VAC 25-130-845.18 Procedures for assessment conference.
    The proposed amendment revises subsection (b)(1) by changing the 
citation of the Virginia Code sections from ``9-6.14:11'' to ``2.2-
4019.''
    23. 4 VAC 25-130-845.19 Request for hearing.
    The proposed amendment revises Subsection (c) by changing the 
citation of the Virginia Code sections from ``9-6.14:12'' to ``2.2-
4020.''
    New Subsection (d) is added to provide as follows:

    All requests for hearing or appeals for review and 
reconsideration made under this section shall be filed with the 
Director, Department of Mines, Minerals and Energy, Post Office 
Drawer 900, Big Stone Gap, Virginia 24219.

    24. 4 VAC 25-130-846.14 Amount of the individual civil penalty.
    Subsection (b) is amended by adding new language to the end of the 
first sentence. As amended, Subsection (b) provides as follows:

    (b) The penalty shall not exceed $5,000 for each violation, 
except that if the violation resulted in a personal injury or 
fatality to any person, then the civil penalty determined under 4 
VAC 25-130-845.13(d) shall be multiplied by a factor of twenty (20), 
not to exceed $70,000. Each day of a continuing violation may be 
deemed a separate violation and the division may assess a separate 
individual civil penalty for each day the violation, failure or 
refusal continues, from the date of service of the underlying notice 
of violation, cessation order or other order incorporated in a final 
decision issued by the Director, until abatement or compliance is 
achieved.

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 Virginia 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 Big Stone Gap Field Office 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: SATS NO. VA-122-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 Big Stone Gap Field 
office at (540) 523-4303.

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 
July 5, 2005. 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

[[Page 35203]]

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

    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 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 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 948

    Intergovernmental relations, Surface mining, Underground mining.


[[Page 35204]]


    Dated: May 23, 2005.
James M. Taitt,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 05-11979 Filed 6-16-05; 8:45 am]
BILLING CODE 4310-05-U