[Federal Register Volume 72, Number 95 (Thursday, May 17, 2007)]
[Proposed Rules]
[Pages 27782-27787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9506]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-112-FOR]
West 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 West
Virginia regulatory program (the West Virginia program) under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act).
West Virginia is re-submitting a proposed amendment to revise the West
Virginia Code of State Regulations (CSR) concerning the hydrologic
impacts of surface mining operations. The amendments are intended to
repeal a definition of ``cumulative impact,'' and add a definition of
``material damage'' to the hydrologic balance outside the permit area.
OSM had approved an earlier submittal of these same amendments on
December 1, 2003 (68 FR 67035), but that approval was vacated and
remanded by the United States District Court for the Southern District
of West Virginia on September 30, 2005. The United States Court of
Appeals for the Fourth Circuit affirmed the lower court's ruling on
December 12, 2006. We are expressly seeking comment on whether the
proposed amendments and the supporting arguments and explanations
presented by the State are consistent with the Federal hydrologic
protection requirements under SMCRA.
DATES: We will accept written comments on this amendment until 4 p.m.
(local time), on June 18, 2007. If requested, we will hold a public
hearing on the amendment on June 11, 2007. We will accept requests to
speak at a hearing until 4:00 p.m. (local time), on June 1, 2007.
ADDRESSES: You may submit comments, identified by WV-112-FOR, by any of
the following methods:
E-mail: [email protected]. Include WV-112-FOR in the subject
line of the message;
Mail/Hand Delivery: Mr. Roger W. Calhoun, Director,
Charleston Field Office, Office of Surface Mining Reclamation and
Enforcement, 1027 Virginia Street, East, Charleston, West Virginia
25301; or
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 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 West 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 also receive one free copy of this amendment by
contacting OSM's Charleston Field Office listed below.
Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of
Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East,
[[Page 27783]]
Charleston, West Virginia 25301, Telephone: (304) 347-7158. E-mail:
[email protected].
West Virginia Department of Environmental Protection, 601 57th
Street, SE., Charleston, WV 25304, Telephone: (304) 926-0490.
In addition, you may review a copy of the amendment during regular
business hours at the following locations:
Office of Surface Mining Reclamation and Enforcement, Morgantown
Area Office, 604 Cheat Road, Suite 150, Morgantown, West Virginia
26508, Telephone: (304) 291-4004. (By Appointment Only)
Office of Surface Mining Reclamation and Enforcement, Beckley Area
Office, 313 Harper Park Drive, Suite 3, Beckley, West Virginia 25801,
Telephone: (304) 255-5265.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, Telephone: (304) 347-7158. E-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Background on the Previous Submittal of This Amendment
III. Description of the Proposed Amendment
IV. Public Comment Procedures
V. Procedural Determinations
I. Background on the West 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 West Virginia program on January 21, 1981.
You can find background information on the West Virginia program,
including the Secretary's findings, the disposition of comments, and
conditions of approval of the West Virginia program in the January 21,
1981, Federal Register (46 FR 5915). You can also find later actions
concerning West Virginia's program and program amendments at 30 CFR
948.10, 948.12, 948.13, 948.15, and 948.16.
II. Background on the Previous Submittal of this Amendment
In 2001, West Virginia House Bill 2663 was enacted as State law.
House Bill 2663 deleted the definition of cumulative impact at CSR 38-
2-2.39 and added a definition of material damage at CSR 38-2-3.22.e, a
provision that concerns cumulative hydrologic impact assessments (CHIA)
of surface coal mining and reclamation operations. By letter dated May
2, 2001, West Virginia submitted the proposed changes as an amendment
to its permanent regulatory program (Administrative Record Number WV-
1209). OSM approved the deletion of the definition of cumulative impact
and the addition of the definition of material damage on December 1,
2003 (68 FR 67035) (Administrative Record Number WV-1379).
On January 30, 2004, the Ohio River Valley Environmental Coalition,
Inc., Hominy Creek Preservation Association, Inc., and Citizens Coal
Council filed a complaint and petition for judicial review in the
United States District Court for the Southern District of West Virginia
(Administrative Record Number WV-1382). On September 30, 2005, the
United States District Court for the Southern District of West Virginia
vacated OSM's decision of December 1, 2003, and remanded the matter to
the Secretary for further proceedings consistent with the Court's
decision (Administrative Record Number WV-1439).
In response to the Court's decision of September 30, 2005, OSM
notified the State on November 1, 2005, that its definition of material
damage was not approved and could not be implemented. OSM also stated
that the deletion of the definition of cumulative impact was not
approved and the State had to take action to add it back into the
program. On November 22, 2005, the United States District Court for the
Southern District of West Virginia amended its earlier decision
(Administrative Record Number WV-1454). In its amended order, the Court
directed the Secretary to instruct the State that it may not implement
either the new language nor the deletion of language from the State's
program, and that the State must enforce only the State program
approved by OSM prior to the amendments. By letter dated January 5,
2006, OSM notified the State that the Court's amended judgment order
makes it clear that the definition of ``cumulative impact'' at CSR 38-
2-2.39 remains part of the approved West Virginia program and, as such,
must be implemented by the State, and that the definition of ``material
damage'' is not approved and can not be implemented.
On December 12, 2006, the U.S. Court of Appeals for the Fourth
Circuit affirmed the District Court's ruling of September 30, 2005, to
vacate and remand OSM's approval of West Virginia's amendments
(Administrative Record Number WV-1479). The Fourth Circuit Court ruled
that OSM failed to comply with the rulemaking procedures set forth in
section 553 of the Administrative Procedure Act. The Court also stated
that OSM's failure to properly analyze and explain its decision to
approve the State's program amendment rendered that action arbitrary
and capricious.
III. Description of the Proposed Amendment
By letter dated March 22, 2007 (Administrative Record Number WV-
1485), the West Virginia Department of Environmental Protection (WVDEP)
re-submitted an amendment to its program under SMCRA (30 U.S.C. 1201 et
seq.). See Section II above, for the background on the previous
submittal of this amendment. The amendment revises the West Virginia
Code of State Regulations (CSR) concerning the potential hydrologic
impacts of surface and underground mining operations. The amendment is
intended to repeal a definition of ``cumulative impact,'' and add a
definition of ``material damage'' to the hydrologic balance outside the
permit area.
In its March 22, 2007, re-submittal letter, the State provided the
following information in support of its proposed amendment: A
description of the proposed amendment; a 13-page explanation of why it
believes the amendment is no less stringent than SMCRA and no less
effective than the Federal regulations; a copy of the State's
Requirements Governing Water Quality Standards at 47 CSR 2; and a copy
of the United States District Court for the Southern District of West
Virginia decision Ohio River Valley Environmental Coalition, Inc.
(OVEC), et al., v. Callaghan, et al., Civil Action No. 3:00-0058, dated
March 8, 2001. You may receive a copy of this information by contacting
the person listed above under FOR FURTHER INFORMATION CONTACT.
It must be noted that WVDEP stated in its March 22, 2007, letter
that it is resubmitting the program amendment pursuant to 30 CFR
732.17(h)(9). The Federal regulations at 30 CFR 732.17(h)(8) provide
that if the Director disapproves an amendment, the State regulatory
authority will have 30 days after publication of the Director's
decision to resubmit a revised amendment request for consideration by
the Director. The Federal regulations at 30 CFR 732.17(h)(9) specify
the minimum public comment period to be
[[Page 27784]]
provided and the time period within which the Director should approve
or disapprove an amendment resubmission. This program amendment does
not qualify as a resubmission pursuant to 30 CFR 732.17(h)(8) and (9)
because this amendment has been the subject of litigation and the time
period provided at 30 CFR 732.17(h)(8) for resubmission has expired.
Therefore, OSM will treat the amendment as a new request and initiate
review procedures in accordance with 30 CFR 732.17(h).
West Virginia Proposes the Following Amendments
1. CSR 38-2-2.39 Definition of ``cumulative impact''
This definition is proposed for deletion from the West Virginia
program, and provides as follows:
Cumulative impact means the hydrologic impact that results from
the cumulation of flows from all coal mining sites to common
channels or aquifers in a cumulative impact area. Individual mines
within a given cumulative impact area may be in full compliance with
effluent standards and all other regulatory requirements, but as a
result of the co-mingling of their off-site flows, there is a
cumulative impact. The Act does not prohibit cumulative impacts but
does emphasize that they be minimized. When the magnitude of
cumulative impact exceeds threshold limits or ranges as
predetermined by the Division, they constitute material damage.
2. CSR 38-2-3.22.e Cumulative Hydrologic Impact Assessment (CHIA)
This provision is proposed to be amended by adding a definition of
material damage to the existing language. The proposed definition of
material damage provides as follows:
Material damage to the hydrologic balance outside the permit
area[s] means any long term or permanent change in the hydrologic
balance caused by surface mining operation(s) which has a
significant adverse impact on the capability of the affected water
resource(s) to support existing conditions and uses.
As amended, CSR 38-2-3.22.e would provide as follows:
The Director [Secretary] shall perform a separate CHIA for the
cumulative impact area of each permit application. This evaluation
shall be sufficient to determine whether the proposed operation has
been designed to prevent material damage to the hydrologic balance
outside the permit area. Material damage to the hydrologic balance
outside the permit area[s] means any long term or permanent change
in the hydrologic balance caused by surface mining operation(s)
which has a significant adverse impact on the capability of the
affected water resource(s) to support existing conditions and uses.
In support of the proposed amendments described above, the WVDEP
provided a 13-page explanation that we have summarized below.
Application of the Material Damage Definition
In its submittal, the WVDEP stated that the new definition of
material damage at CSR 38-2-3.22.e focuses on the impact of mining
operation(s) on the ability of a water resource to ``support existing
conditions and uses''. The principle use of the term ``material
damage'' in the hydrologic context in SMCRA, is as a test for
evaluating the potential hydrologic impacts of a permit application
before the mining operation (and any potential enforcement) takes
place. This new definition effectively requires the State to consider
the water quality standards it has promulgated pursuant to section
303(a) of the Federal Clean Water Act as part of the material damage
inquiry under the surface mining law. These water quality standards are
codified in the State regulations at CSR 47-2-1 to -9.4. By definition
at CSR 47-2-2.21, ``water quality standards'' means the ``combination
of water uses to be protected and the water quality criteria to be
maintained by these rules.'' The phrase used in this definition,
``water quality criteria'', is also a defined term at CSR 47-2-2.20,
and its definition reiterates this direct link between protection of
stream uses and application of water quality standards:
``Water quality criteria'' shall mean levels of parameters or
stream conditions that are required to be maintained by these
regulations [state water quality standards]. Criteria may be
expressed as a constituent concentration, levels, or narrative
statement, representing a quality of water that supports a
designated use or uses.
The WVDEP stated that CSR 47-2-6 establishes various categories of
uses for the water resources of the State. For protection of each of
these categories of use, Appendix E, Table 1 of the water quality
standards rules establishes a specific set of water quality criteria
(see CSR 47-2-8.1). These sets of criteria include numeric limits for
various pollutant parameters that are intended to protect the category
of use to which they apply. Most, if not all, of these State numeric
limits are based on scientific studies conducted by or for the U.S.
Environmental Protection Agency for the purpose of providing technical
guidance to state regulators as to the limits that must be placed on
the concentrations of various pollutants in order to provide protection
for each category of stream use.
The WVDEP stated that to assure that mining will not result in a
long term or permanent change in the hydrologic balance which has a
significant adverse impact on the capability of a receiving stream to
support its uses, a proposed mining operation must be designed so as to
consistently comply with the water quality standards for these uses. If
upon review of a permit application and assessment of the probable
cumulative impact of all anticipated mining in the cumulative impact
area on the hydrologic balance, the WVDEP is able to determine that the
proposed operation has been designed so as to consistently comply with
the water quality standards that protect the uses of the water into
which discharges from the operation will flow, the WVDEP will make a
finding that the proposed operation has been designed so as to prevent
material damage to the hydrologic balance outside the permit area.
Consistent with the concept that mining operations must be designed
to prevent material damage, isolated or random exceedences of water
quality standards by a slight margin which do not affect the capability
of the affected water resource to support its uses will not be regarded
as ``material'' damage.
In making the material damage finding upon a proposed operation's
capability, as designed, to consistently comply with water quality
standards, the WVDEP does not intend to create the impression that it
will consider every pollutant for which a water quality standard has
been promulgated. Water quality standards have been promulgated for a
wide variety of parameters, many of which have no potential to be in
the effluent from a mining operation. Instead, the agency's
consideration will be limited to standards for those parameters which,
based on its experience with other mining operations in the area and
the geochemical data which the provisions at CSR 38-2-3.23 require to
be included in the application, have the potential to have an impact on
water quality if the application is granted.
Comparison of the Material Damage and Cumulative Impact Definitions
The WVDEP stated that for the most part, there is very little
difference between the definition of ``cumulative impact'' that is
proposed to be deleted, which included a definition of material damage,
and the material damage definition that is proposed to be added. The
cumulative impact definition at CSR 38-2-2.39 provides that material
damage occurs when ``the magnitude of cumulative impact exceeds
threshold limits or ranges as predetermined by the [WVDEP]''.
[[Page 27785]]
The agency's guidance to its permit reviewers stated that water
quality standards should be used as material damage limits under this
definition. As with the material damage definition at CSR 38-2-3.22.e
that is being proposed, isolated or random exceedences of water quality
standards by a slight margin which did not affect the capability of the
affected water resource to support its uses were not regarded as
``material'' damage under the cumulative impact definition.
Accordingly, regardless of whether a permit reviewer made a material
damage finding based on application of threshold limits or ranges under
the old cumulative impact definition or makes such a finding based on
whether there will be a significant adverse impact on the capability of
the affected water resource to support its uses under the new material
damage definition, the real focus under both definitions is on the
question of whether water quality standards will be met consistently so
stream uses are protected.
The WVDEP stated that there are three distinctions between the old
cumulative impact definition and the new material damage definition.
First, by requiring the material damage finding to be made upon the
capability of the stream to support its uses, the new definition
clearly requires the material damage inquiry to be made by reference to
the State's water quality standards that have been promulgated to
protect these uses. On its face, the old cumulative impact definition
only required this finding to be based on threshold limits or ranges.
Outside the agency's guidance, which lacked the binding effect of a
regulation, there was no requirement that any particular set of
``limits or ranges'' be used. Accordingly, individual permit reviewers
may have believed that they had discretion to arbitrarily make up their
own criteria on a case by case basis. Where such criteria varied from
water quality standards, there was potential for conflict with the
Clean Water Act in violation of 30 U.S.C. 1292(a)(3) of SMCRA. By
requiring the finding to be made upon the capability of a stream to
support its uses, which requires this judgment to be based on the
ability of the operation to comply with water quality standards, the
potential for both arbitrarily established limits and conflict with the
Clean Water Act is eliminated. Therefore, the new definition is more
objective.
Second, the WVDEP stated that the old definition could be read to
mean that a single, minor exceedence of threshold limits or ranges
which did not result in any perceptible damage constitutes material
damage. For example, if the iron level in a trout stream is measured at
0.52 mg/l at any single point in time, which exceeds the water quality
standard of 0.50 mg/l for the iron concentration in trout streams, some
would argue that the stream has been materially damaged, even in the
absence of any evidence that this single exceedence has contributed to
impairment of any aspect of the trout's life cycle or the supporting
ecology. The new definition makes it clear that single or random, minor
exceedences which do not affect the capability of a water resource to
support its uses do not constitute ``material'' damage. By equating
``material'' damage with a ``significant'' adverse impact on the
capability of the affected water resource to support its uses, the new
definition is truer to the plain meaning of ``material damage'' as used
in the statute.
Third, the WVDEP stated that the old definition, which is proposed
to be deleted, focuses only on whether ``cumulative impacts'' exceed
the threshold limits or ranges, to the exclusion of consideration of
other individual hydrologic impacts of the proposed operation. This
exclusive focus may not be consistent with 30 CFR sections 780.21(g)
and 784.14(f) which require the material damage finding to be based on
a determination of ``whether the proposed operation has been designed
to prevent material damage to the hydrologic balance outside the permit
area''. Under the new definition, this potential shortcoming is
eliminated. The new material damage definition provides for
consideration of the design of the proposed operation as well as
cumulative impacts through its focus on whether there has been a
``change in the hydrologic balance caused by surface mining
operation(s)''.
The WVDEP concluded that the State's proposed material damage
definition is consistent with the plain meaning of the term as it is
used in SMCRA, its use in the context of hydrologic protection in
SMCRA, the meaning it is given in other contexts in SMCRA, as well as
the overall focus of SMCRA. By focusing on the protection of stream
uses, based on whether a proposed mining operation has been designed to
consistently comply with water quality standards that have been
promulgated to protect such uses, based upon scientific study, the
material damage definition provides a seamless interface between the
State's clean water regulatory program and regulation of impacts from
mining on the hydrologic balance under the surface mining regulatory
program. In the opinion of the State, these amendments render the State
program more consistent with SMCRA rather than less so.
IV. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether these amendments and the supporting arguments and
explanations presented by the State satisfy the applicable program
approval criteria of 30 CFR 732.15. If we approve these revisions, they
will become part of the West 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 Charleston Field Office may not be logged
in.
Electronic Comments
Please submit Internet comments as an E-mail or Word file avoiding
the use of special characters and any form of encryption. Please also
include Attn: SATS NO. WV-112-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 Charleston Field
office at (304) 347-7158.
Availability of Comments
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
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
June 1, 2007. If you are disabled and need special accommodations to
attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We
[[Page 27786]]
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.
V. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is 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
[[Page 27787]]
laws and executive orders for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: April 19, 2007.
Michael K. Robinson,
Acting Regional Director, Appalachian Region.
[FR Doc. E7-9506 Filed 5-16-07; 8:45 am]
BILLING CODE 4310-05-P