[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Proposed Rules]
[Pages 50263-50265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19713]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 924

[SATS No. MS-018-FOR; Docket No. OSM-2008-0017]


Mississippi Regulatory Program

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

ACTION: Proposed rule; reopening and extension of public comment period 
on proposed amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are announcing receipt of revisions to a previously proposed 
amendment to the Mississippi regulatory program (Mississippi program) 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or 
the Act). Mississippi proposes a revision to its regulations regarding 
valid existing rights as it pertains to designation of lands as 
unsuitable for surface coal mining operations. Mississippi intends to 
revise its program to be consistent with SMCRA.
    This document gives the times and locations that the Mississippi 
program and proposed amendment to that program are available for your 
inspection and the comment period during which you may submit written 
comments on the revisions to the amendment.

DATES: We will accept written comments on this amendment until 4 p.m., 
c.t., September 10, 2008.

ADDRESSES: You may submit comments by either of the following two 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
The proposed rule is listed under the agency name ``OFFICE OF SURFACE 
MINING RECLAMATION AND ENFORCEMENT'' and has been assigned Docket ID: 
OSM-2008-0017. If you would like to submit comments through the Federal 
erulemaking Portal, go to http://www.regulations.gov and do the 
following. Click on the ``Advanced Docket Search'' button on the right 
side of the screen. Type in the Docket ID OSM-2008-0017 and click the 
submit button at the bottom of the page. The next screen will display 
the Docket Search Results for the rulemaking. If you click on the OSM-
2008-0017, you can view the proposed rule and submit a comment. You can 
also view supporting material and any comments submitted by others.
     Mail/Hand Delivery/Courier: Sherry Wilson, Director, 
Birmingham Field Office, Office of Surface Mining Reclamation and 
Enforcement, 135 Gemini Circle, Suite 215, Homewood, Alabama 35209. 
Please include the Docket ID (OSM-2008-0017) with your comments.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) or sent to an address other than the two 
listed above will be included in the docket for this rulemaking and 
considered.
    For additional information on the rulemaking process and the public 
availability of comments, see ``III. Public Comment Procedures'' in the 
SUPPLEMENTARY INFORMATION section of this document.
    You may receive one free copy of the amendment by contacting OSM's 
Birmingham Field Office. See below FOR FURTHER INFORMATION CONTACT.
    You may review a copy of the amendment during regular business 
hours at the following locations:

Sherry Wilson, Director, Birmingham Field Office, Office of Surface 
Mining Reclamation and Enforcement, 135 Gemini Circle, Suite 215, 
Homewood, Alabama 35209, Telephone: (205) 290-7282, [email protected].
Michael B. E. Bograd, Director, Mississippi Department of Environmental 
Quality, 2380 Highway 80 West, P.O. Box 20307, Jackson, Mississippi 
39289-1307, Telephone: (601) 961-5500.

FOR FURTHER INFORMATION CONTACT: Sherry Wilson, Director, Birmingham 
Field Office. Telephone: (205) 290-7282. E-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

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

I. Background on the Mississippi Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and

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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 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 of the Interior 
approved the Mississippi program on September 4, 1980. You can find 
background information on the Mississippi program, including the 
Secretary's findings and the disposition of comments in the September 
4, 1980, Federal Register (45 FR 58520). You can also find later 
actions concerning the Mississippi program and program amendments at 30 
CFR 924.10, 924.15, 924.16, and 924.17.

II. Description of the Proposed Amendment

    By letter dated April 5, 2006 (Administrative Record No. MS-0402), 
Mississippi sent us an amendment to its program under SMCRA (30 U.S.C. 
1201 et seq.). Mississippi sent the amendment at its own initiative.
    We announced receipt of the proposed amendment in the May 24, 2006, 
Federal Register (71 FR 29867) and invited public comment on its 
adequacy. The public comment period ended June 23, 2006.
    During our review of the amendment, we identified concerns relating 
to Mississippi's definition for ``valid rights'' in its statute and 
associated regulations in sections 105, 1101, and 1105 of the 
Mississippi Surface Coal Mining Regulations. We notified Mississippi of 
these concerns by letter dated August 17, 2006 (Administrative Record 
No. MS-0414). By letter dated May 30, 2008, Mississippi sent us 
additional explanatory information (Administrative Record No. MS-0416-
02). By e-mail dated July 23, 2008, Mississippi also sent us revisions 
to its amendment (Administrative Record No. MS-0416-03). Below are the 
revisions Mississippi proposes.

A. Mississippi Surface Coal Mining Regulations (MSCMR) 105. Definitions

    Mississippi proposes to add a definition for ``valid rights'' to 
read as follows:

Valid Rights--as used in Sec.  53-9-71(4) of the Act means Valid 
Existing Rights.

B. MSCMR 1101. Authority

    Mississippi proposes to revise this section to read as follows:

    The Commission is authorized by Sec.  53-9-71(4) of the Act to 
prohibit or limit surface coal mining operations on or near certain 
private, federal and other public lands, subject to valid rights.

C. MSCMR 1105. Areas Where Mining is Prohibited or Limited

    Mississippi proposes to revise the introductory paragraph of this 
section to read as follows:

    Subject to valid existing rights as defined in Sec.  105, no 
surface coal mining operations shall be conducted on the following 
lands unless you have valid existing rights as determined under 
Sec.  1106 or qualify for the exception for existing operations 
under paragraph (h) of this section:

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 State program.

Written Comments

    Send your comments to us by one of the two methods specified 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 cannot ensure that comments received after the 
close of the comment period (see DATES) or sent to an address other 
than the two listed above (see ADDRESSES) will be included in the 
docket for this rulemaking and considered.

Public 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.

IV. Procedural Determinations

Executive Order 12630--Takings

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

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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 the Mississippi program does not regulate coal 
exploration and surface coal mining and reclamation operations on 
Indian lands. Therefore, the Mississippi 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 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 fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

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 fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 924

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 30, 2008.
Sherry Wilson,
Acting Regional Director, Mid-Continent Region.
[FR Doc. E8-19713 Filed 8-25-08; 8:45 am]
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