[Federal Register Volume 70, Number 161 (Monday, August 22, 2005)]
[Proposed Rules]
[Pages 48925-48929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16573]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 925

[Docket No. MO-738]


Public Hearing and Public Comment Period on Termination of 
Federal Enforcement for Parts of the Missouri Permanent Regulatory 
Program

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

ACTION: Proposed rule; notice of public comment period and public 
hearing.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), announced our decision to substitute Federal enforcement for 
parts of the Missouri permanent regulatory program (Missouri program) 
on August 22, 2003 (68 FR 50944). We are announcing today that the 
Governor of Missouri petitioned us to consider returning to Missouri 
the authority to enforce those parts of the Missouri program for which 
we substituted Federal enforcement. The Missouri Department of Natural 
Resources, Air and Land Protection Division, Land Reclamation Program 
(MLRP) is the regulatory authority responsible for implementing and 
enforcing the Missouri program. If we approve Missouri's petition, we 
will terminate Federal enforcement for those parts of the Missouri 
program for which we substituted Federal enforcement and return full 
enforcement authority to the MLRP.
    We are providing an opportunity for interested persons to comment 
on the Missouri Governor's petition to reassume authority of those 
parts of the Missouri program currently being enforced by us 
(Administrative Record No. MO-664.42). This document gives the dates 
and times during which interested persons may submit written comments 
or participate in the scheduled public hearing regarding Missouri's 
petition. This document also includes the procedures that we will 
follow for the public hearing.

DATES: We will accept written comments until 4 p.m., c.d.t., September 
29, 2005. Comments received after this time may not be considered in 
our findings on the petition from the Governor of Missouri to reassume 
authority of the Missouri program.
    Public Hearing: We will hold a public hearing on the proposed rule 
on September 22, 2005, at 2 p.m., c.d.t. We will accept requests to 
speak at the public hearing until 4 p.m., c.d.t. on September 16, 2005. 
If you wish to attend and speak at the hearing, you should follow the 
procedures under the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.

ADDRESSES: You may submit comments, identified by Docket No. MO-738, by 
any of the following methods:
     E-mail: [email protected]. Include Docket No. MO-738 in 
the subject line of the message.
     Mail/Hand Delivery: Andrew R. Gilmore, Chief, Alton Field 
Division, Office of Surface Mining Reclamation and Enforcement, 501 
Belle Street, Alton, Illinois 62002.
     Fax: (618) 463-6470.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of all 
administrative record documents referenced in this document, a listing 
of any scheduled public hearings, and all written comments received in 
response to this document, you must go to the address listed below 
during normal business hours, Monday through Friday, excluding 
holidays. Andrew R. Gilmore, Chief, Alton Field Division, Office of 
Surface Mining Reclamation and

[[Page 48926]]

Enforcement, 501 Belle Street, Alton, Illinois 62002, Telephone: (618) 
463-6460, E-mail: [email protected].
    If you wish to attend the public hearing, it will be held at the 
following location:
    The Missouri Department of Natural Resources, 1738 East Elm Street, 
Bennett Springs Room, Jefferson City, Missouri 65102.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Chief, Alton Field 
Division. Telephone: (618) 463-6460. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Missouri Program
II. Missouri's Responses to Required Remedial Actions
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Missouri Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary conditionally approved the 
Missouri program on November 21, 1980. You can find background 
information on the Missouri program, including the Secretary's 
findings, the disposition of comments, and conditions of approval, in 
the November 21, 1980, Federal Register (45 FR 77017). You can also 
find later actions concerning the Missouri program and program 
amendments at 30 CFR 925.10, 925.12, 925.15, 925.16, 925.17, 925.18, 
and 925.19.
    On June 19, 2003, the MLRP notified us that the Missouri 
Legislature passed House Bill (HB) 6 that appropriated funds for the 
Missouri program. In HB 6, the Missouri Legislature did not fully fund 
the Missouri program for the period beginning July 1, 2003, and ending 
June 30, 2004. The Missouri Legislature only appropriated funds for 
bond forfeiture reclamation activities. The Governor of Missouri signed 
the appropriation bill on May 30, 2003 (Administrative Record No. MO-
664).
    On July 2, 2003, we met with the MLRP at the Missouri Department of 
Natural Resources' office in Jefferson City, Missouri (Administrative 
Record No. MO-664.1). During the meeting, the MLRP made a presentation, 
including a series of slides, describing the recently approved 
appropriation bill. HB 6 contained a severe cut in general revenue 
dollars available as State matching funds for the regulatory program. 
The MLRP advised us that the moneys that were available for the 
regulatory program would only be used for bond forfeiture reclamation 
activities. Also, the MLRP advised us that the State Legislature 
appropriated Federal funds for the abandoned mine land reclamation 
(AMLR) program. In addition, the MLRP explained that as of July 18, 
2003, existing regulatory program staff, with the exception of four 
full-time employees, would be transferred to other programs and that it 
would not be able to implement and maintain its inspection, 
enforcement, permitting, or bond release responsibilities under the 
currently approved Missouri program. The four full-time employees would 
perform the bond forfeiture reclamation activities that were authorized 
by the State Legislature. The MLRP indicated that it would try to gain 
full program funding from the Missouri Legislature for Fiscal Year (FY) 
2005.
    On July 21, 2003, the Governor of Missouri notified us that the 
State of Missouri was experiencing difficult budget and revenue 
shortfalls (Administrative Record No. MO-664.3). As a result of the 
revenue shortfalls, he requested assistance with permit reviews, 
inspection activities, and general oversight of the active coal mining 
operations in the State. He indicated that Missouri had adequate 
funding and staff available to maintain design and reclamation efforts 
for bond forfeiture sites, as well as sufficient funding and staff to 
maintain the AMLR program, including the emergency program. He also 
indicated that he was hopeful his request would be temporary and that 
he would continue to work with the Legislature in an attempt to assure 
adequate funding for all of Missouri's regulatory program 
responsibilities.
    On August 4, 2003, we notified the Governor of Missouri that we 
were obligated, in accordance with 30 CFR 733.12(e), to substitute 
Federal enforcement for parts of the Missouri program. We cited 
Missouri's failure to fund and staff the Missouri program in several 
areas including inspection, enforcement, permitting, and bonding 
activities (Administrative Record No. MO-664.4).
    In accordance with the provisions of 30 CFR 733.12(f), we announced 
our decision, effective August 22, 2003, to institute direct Federal 
enforcement for those parts of the Missouri program that were not fully 
funded and staffed. We suspended the authority of the MLRP to enforce 
all portions of the Missouri program except bond forfeiture reclamation 
activities. We determined that the MLRP had sufficient funding and 
staff to implement and maintain bond forfeiture reclamation activities. 
With this substitution of Federal enforcement authority, we outlined a 
process, including remedial actions, by which Missouri could regain 
full authority for its program (68 FR 50944).
    On April 15, 2004, we clarified our substitution of Federal 
enforcement for parts of the Missouri program and made findings on the 
status of the Missouri program (69 FR 19927).
    On May 3, 2004, the MLRP notified us that the Missouri Legislature 
failed to fully fund the Missouri program for the period beginning July 
1, 2004, and ending June 30, 2005 (Administrative Record No. MO-
664.22). In the same letter, the MLRP outlined its financial and 
organizational plans to submit a request to its division and department 
legislative staff to propose funding and staffing that would be needed 
to reassume authority of the complete active coal regulatory program 
beginning July 1, 2005. On May 25, 2004, we notified the MLRP that 
based on its May 3, 2004, submittal, we would continue the current 
Federal substitution plan for one more year (Administrative Record No. 
MO-664.24).
    By letter dated May 2, 2005, the MLRP notified us that the Director 
of the Missouri Department of Natural Resources (MDNR) had agreed to 
seek full return of the regulatory program to Missouri. The MLRP also 
requested a meeting with us to discuss the plan for the return of the 
program to Missouri. The MLRP noted that the State budget includes the 
necessary funding and staffing allocations and that it plans to use 
remaining past coal fee funds to match the Federal regulatory grant for 
FY 2006 (Administrative Record No. MO-664.39).
    By letter dated May 12, 2005, we advised the MLRP that before 
Missouri can reassume full authority to implement and enforce the 
Missouri program, the MLRP must complete the remedial measures 
specified in 30 CFR 925.18. In accordance with 30 CFR 925.18(c), we 
requested that the MLRP submit a detailed description of the past coal 
fee funds that it proposed to use to match the Federal regulatory 
grant. We also requested that the MLRP provide us with a Missouri 
Attorney General's opinion on the legality of using these

[[Page 48927]]

funds (Administrative Record No. MO-664.40).
    On May 26, 2005, we met with the Deputy Director of the MDNR to 
discuss (1) funding; (2) current staff for the forfeiture program and 
AMLR plan; (3) Cooperative Agreement funding beginning July 1, 2005, 
until we approve the return of authority to Missouri; (4) procedural 
matters; (5) program issues; and (6) bond forfeiture site reclamation 
progress (Administrative Record No. MO-664.44).
    By letter dated May 27, 2005, the Governor of Missouri petitioned 
us to consider returning to Missouri the authority to implement and 
enforce those parts of the Missouri program for which we substituted 
Federal enforcement (Administrative Record No. MO-664.42).
    On June 28, 2005, the Director of the MDNR submitted information on 
the funding and staffing plans that the MLRP would use to assume full 
enforcement authority for the Missouri program as required by 30 CFR 
925.18(c). The Director of the MDNR also provided the Missouri Attorney 
General's written opinion on the legality of the funding proposal 
(Administrative Record No. MO-664.48).

II. Missouri's Responses to Required Remedial Actions

    A. In order for the MLRP to demonstrate its intent and capability 
to fully implement and enforce the Missouri program as approved by the 
Secretary, we required the MLRP to complete certain remedial actions, 
which we codified at 30 CFR 925.18. The Federal regulation at 30 CFR 
925.19 provides that we will consider returning to the MLRP the 
authority suspended under 30 CFR 925.17 provided that the State has 
accomplished all remedial actions specified under 30 CFR 925.18; and 
the MLRP petitions us in writing to consider returning authority to the 
State. On May 27, 2005, we received a petition from the Governor of 
Missouri requesting that we return, to the State, the enforcement 
authority that was suspended under 30 CFR 925.17 (Administrative Record 
No. MO-664.42). Described below are Missouri's responses to the 
required remedial actions.
    B. 30 CFR 925.18 State Remedial Actions. 1. 30 CFR 925.18(a)--We 
required the MLRP to submit to us, by August 22, 2003, a list of all 
outstanding enforcement actions specifying the abatement date set for 
each cited violation. On July 22, 2003, the Missouri Attorney General's 
office provided us with a copy of all outstanding enforcement actions 
(Administrative Record No. MO-664.13). The notices of violation and 
cessation orders specified the abatement date set for each cited 
violation. On April 15, 2004, we determined that the MLRP had satisfied 
this required remedial action, and we removed paragraph (a) from 30 CFR 
925.18. See 69 FR 19932, dated April 15, 2004.
    2. 30 CFR 925.18(b)--In accordance with the requirements of the 
approved Missouri program, the MLRP was to complete administrative 
disposition of all enforcement actions that were initiated before 
August 22, 2003. As applicable, the MLRP was to conduct penalty 
assessments, hold informal conferences and hearings, collect penalties, 
and terminate or vacate enforcement actions. On November 25, 2003, the 
MLRP notified us that it had completed administrative disposition of 
five enforcement actions that were initiated before August 22, 2003 
(Administrative Record No. MO-664.17). Additionally, on February 18, 
2004, the MLRP notified us that it had completed administrative 
disposition of the balance of its enforcement actions (Administrative 
Record No. MO-664.18A).
    3. 30 CFR 925.18(c)--Within 30 days of the date on which OSM has 
received and acknowledged an accurate description of available funding 
for the regulatory program, the MLRP must submit to OSM a plan to 
reassume full authority for the Missouri program. At a minimum, the 
proposal must provide specific and adequate provisions that address 
funding, staffing, and adherence to the approved program. On June 28, 
2005, the Director of the MDNR submitted information on the funding and 
staffing plans that the MLRP would use to assume full enforcement 
authority for the Missouri program as required by 30 CFR 925.18(c). The 
Director of the MDNR also provided the Missouri Attorney General's 
written opinion on the legality of the funding proposal (Administrative 
Record No. MO-664.48).
    4. 30 CFR 925.18(d)--Starting on April 1, 2004, the MLRP was to 
submit to us a report monthly on its progress in obtaining full funding 
for the Missouri program. The MLRP submitted monthly update reports on 
its progress in obtaining the funding and staffing needed to reassume 
its program beginning on May 3, 2004, and continuing through July 7, 
2005 (Administrative Record Nos. MO-644.22, MO-664.23, MO-664.26--MO-
664.34, MO-664.36--MO-664.45, and MO-664.50).
    5. 30 CFR 925.18(e)--Effective September 8, 2003, the MLRP was to 
take all steps necessary to ensure that all records, documents, 
correspondence, inspector logs, etc. were made secure and to supply 
copies of all documents to us upon request. Beginning in July 2003, the 
MLRP provided access to all materials that we requested (Administrative 
Record No. MO-664.13). The MLRP also provided us with copies of all 
items, such as permit review documents and bond release applications, 
that were pending when it lost funding for the State program. On April 
15, 2004, we determined that the MLRP had satisfied this required 
remedial action, and we removed paragraph (e) from 30 CFR 925.18. See 
69 FR 19932, dated April 15, 2004.
    After the close of the public comment period and public hearing, we 
will announce in the Federal Register our decision on Missouri's 
responses to the required remedial actions at 30 CFR 925.18.

III. Public Comment Procedures

    In accordance with 30 CFR 925.19(b), we are announcing a public 
comment period and a public hearing to provide interested parties a 
means to comment on Missouri's petition to reassume full authority for 
those parts of the Missouri program that we directly enforce, as 
specified under 30 CFR 925.17, and the termination of Federal 
enforcement for those parts of the Missouri program.
    After the public comment period and after we review all available 
information, we will publish our decision to grant in whole or in part 
or to deny Missouri's petition to reassume full authority for the 
Missouri program in accordance with 30 CFR 925.19(c).

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific and pertain only 
to the issue of whether we should terminate Federal enforcement and 
return full regulatory authority to the State of Missouri. Please 
include explanations in support of your comments. We will not consider 
your comments 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 Alton Field Division may not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: Docket No. MO-738'' and your name and return address in 
your Internet

[[Page 48928]]

message. If you do not receive a confirmation that we have received 
your Internet message, contact the Alton Field Division at (618) 463-
6460.

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 review in their entirety.

Public Hearing

    The scope of the public hearing will include matters relevant to 
whether we should grant Missouri's petition to reassume authority for 
those parts of the Missouri program that we directly enforce and 
terminate Federal enforcement for those parts of the Missouri program.
    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., c.d.t. on 
September 16, 2005. If you are disabled and need special accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT.
    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.
    In addition, we will follow the hearing format and rules of 
procedure listed below.
    1. The hearing will be informal in nature. We will only accept oral 
and written comments.
    2. We ask that attendees sign in upon entering the hearing room.
    3. Those wishing to speak must sign the Speaker Registration Form.
    4. Speakers will be called in the order in which they register.
    5. Based on the number of speakers in attendance, each participant 
may be limited to 10 minutes.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based upon the nature of the action being taken.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. 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 State regulatory programs must be based 
solely on a determination of whether the program is consistent with 
SMCRA and its implementing Federal regulations and whether the other 
requirements of 30 CFR parts 730, 731, and 732 have been met.

Executive Order 13132--Federalism

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

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
This determination is based on the fact that there are no Federally-
recognized Indian tribes in the State of Missouri and that the Missouri 
program does not regulate coal exploration and surface coal mining and 
reclamation operations on Indian lands. Therefore, the Missouri program 
has no effect on Federally-recognized Indian tribes.

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

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

National Environmental Policy Act

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

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Department of the Interior certifies that the return of 
regulatory authority to the State of Missouri for those portions of the 
Missouri permanent regulatory program for which we are currently 
substituting Federal enforcement will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). The rule is not expected to 
result in additional costs to the regulated industry.

[[Page 48929]]

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the rule is 
not expected to result in additional costs to the regulated industry.

Unfunded Mandates

    The return of regulatory authority to the State of Missouri for 
those portions of the Missouri permanent regulatory program for which 
we are currently substituting Federal enforcement will not impose an 
unfunded mandate on State, local, or tribal governments or the private 
sector of $100 million or more in any given year. This determination is 
based upon the nature of the action being taken.

List of Subjects in 30 CFR Part 925

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 8, 2005.
Chad Calvert,
Acting Assistant Secretary for Land and Minerals Management.
[FR Doc. 05-16573 Filed 8-19-05; 8:45 am]
BILLING CODE 4310-05-P