[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Rules and Regulations]
[Pages 54679-54682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22171]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 901

[SATS No. AL-074-FOR; Docket No. OSM-2008-0015]


Alabama Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving an amendment to the Alabama regulatory program 
(Alabama program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act). At its own initiative, Alabama proposed 
revisions to its regulations regarding permit fees and civil penalties 
to improve operational efficiency.

DATES: Effective Date: September 23, 2008.

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

SUPPLEMENTARY INFORMATION:

I. Background on the Alabama Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Alabama 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 of the Interior (Secretary) 
conditionally approved the Alabama program on May 20, 1982. You can 
find background information on the Alabama program, including the 
Secretary's findings, the disposition of comments, and the conditions 
of approval, in the May 20, 1982, Federal Register (47 FR 22030). You 
can find later actions on the Alabama program at 30 CFR 901.10, 901.15, 
and 901.16.

II. Submission of the Amendment

    By letter dated July 18, 2008 (Administrative Record No. AL-0658), 
and at its own initiative, Alabama sent us an amendment to its program 
under SMCRA (30 U.S.C. 1201 et seq.). The amendment also included 
changes to its regulations regarding permit fees and civil penalties.
    We announced receipt of the proposed amendment in the August 8, 
2008, Federal Register (73 FR 46213). In the same document, we opened 
the

[[Page 54680]]

public comment period and provided an opportunity for a public hearing 
or meeting on the adequacy of the amendment. We did not hold a public 
hearing or meeting because no one requested one. The public comment 
period ended on September 8, 2008. We did not receive any comments.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment to the Alabama Surface Mining Commission (ASMC) 
regulations as described below.

A. ASMC 880-X-8B-.07. Permit Fees

    Alabama stated that its permit fees have remained unchanged for 26 
years while the costs of reviewing, administering, and enforcing 
permits have increased substantially over this time. As a result, 
Alabama proposed to revise its regulations at ASMC 880-X-8B-.07 by:
    (1) Increasing the acreage fee from $25 to $35 per acre for each 
acre in a permit, (2) Requiring an acreage fee on all ``bonded'' 
acreage covered in a permit renewal instead of on ``all'' acreage in a 
permit renewal, and
    (3) Increasing the basic fees for the following types of 
applications:
    (a) Permit application--the fee increases from $2500 to $5000,
    (b) Coal exploration application--the fee increases from $1000 to 
$2000,
    (c) Permit renewal--the fee increases from $500 to $1000,
    (d) Permit transfer--the fee increases from $100 to $200,
    (e) Permit revision involving only an incidental boundary 
revision--the fee increases from $250 to $500,
    (f) Permit revision involving an insignificant alteration to the 
mining and reclamation plan--the fee increases from $750 to $1500, and
    (g) Permit revision involving a significant alteration to the 
mining and reclamation plan--the fee increases from $1500 to $3000.
    The Federal regulations at 30 CFR 777.17, concerning permit fees, 
provide that applications for surface coal mining permits must be 
accompanied by a fee determined by the regulatory authority. The 
Federal regulations also provide that the fees may be less than, but 
not more than the actual or anticipated cost of reviewing, 
administering, and enforcing the permit. In its letter dated July 18, 
2008 (Administrative Record No. AL-0658), Alabama advised us that the 
increase in the permit fees will not exceed the actual or anticipated 
costs of reviewing, administering, and enforcing the permit.
    We find that Alabama's proposed permit fees are reasonable and are 
consistent with the discretionary authority provided by the Federal 
regulations at 30 CFR 777.17. Therefore, we are approving them.

B. ASMC 880-X-11D-.06. Determination of Amount of Penalty

    To help offset increased costs of agency operations, Alabama 
proposed to increase the dollar amounts of its civil penalties. The 
current penalties begin with $20 and increase to a maximum penalty of 
$5,000. The revised penalties begin with $150 and increase to a maximum 
penalty of $5,000.
    Section 518(i) of SMCRA requires that the civil penalty provisions 
of each State program contain penalties which are ``no less stringent 
than'' those set forth in SMCRA. Our regulations at 30 CFR 840.13(a) 
specify that each State program shall contain penalties which are no 
less stringent than those set forth in section 518 of the Act and that 
they be consistent with 30 CFR part 845. However, in a 1980 decision on 
OSM's regulations governing civil monetary penalties (CMPs), the U.S. 
District Court for the District of Columbia held that because section 
518 of SMCRA fails to enumerate a point system for assessing civil 
penalties, the imposition of this requirement upon the States is 
inconsistent with SMCRA. In response to the Secretary's request for 
clarification, the Court further stated that it could not uphold 
requiring the States to impose penalties as stringent as those 
appearing in 30 CFR 845.15. Instead, section 518(i) of the Act requires 
only the incorporation of penalties and procedures explained in section 
518. The system proposed by the State must incorporate the four 
criteria of section 518(a) of SMCRA: (1) History of previous 
violations, (2) seriousness of the violation, (3) negligence of the 
permittee, and (4) good faith of the permittee in attempting to achieve 
compliance. As a result of the litigation, 30 CFR 840.13(a) was 
suspended in part on August 4, 1980 (45 FR 51548) by suspending the 
requirement that penalties shall be consistent with 30 CFR part 845. 
Consequently, we cannot require that the CMP provisions contained in a 
State's regulatory program mirror the penalty provisions of our 
regulations at 30 CFR 845.14 and 845.15.
    We are approving Alabama's revised penalties because when 
determining the amount of the civil penalty, ASMC 880-X-11D uses the 
four criteria specified in the Federal statute at section 518(a).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment, but did not receive 
any.

Federal Agency Comments

    On August 12 and 21, 2008, under 30 CFR 732.17(h)(11)(i) and 
section 503(b) of SMCRA, we requested comments on the amendment from 
various Federal agencies with an actual or potential interest in the 
Alabama program (Administrative Record No. AL-0658-01). We did not 
receive any comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.).
    None of the revisions that Alabama proposed to make in this 
amendment pertain to air or water quality standards. Therefore, we did 
not ask EPA to concur on the amendment.
    On date, under 30 CFR 732.17(h)(11)(i), we requested comments on 
the amendment from EPA (Administrative Record No. AL-0658-01). EPA did 
not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On August 12, 2008, we requested comments on Alabama's 
amendment (Administrative Record No. AL-0658-01), but neither responded 
to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment Alabama sent 
us on July 18, 2008.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 901, which codify decisions concerning the Alabama 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this rule effective immediately will expedite that 
process.

[[Page 54681]]

SMCRA requires consistency of State and Federal standards.

VI. 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 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 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 Alabama program does 
not regulate coal exploration and surface coal mining and reclamation 
operations on Indian lands. Therefore, the Alabama 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 901

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 12, 2008.
Alfred E. Whitehouse,
Acting Regional Director, Mid-Continent Region.

0
For the reasons set out in the preamble, 30 CFR part 901 is amended as 
set forth below:

PART 901--ALABAMA

0
1. The authority citation for part 901 continues to read as follows:

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


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2. Section 901.15 is amended in the table by adding a new entry in

[[Page 54682]]

chronological order by ``Date of final publication'' to read as 
follows:


Sec.  901.15  Approval of Alabama regulatory program amendments.

* * * * *

------------------------------------------------------------------------
Original amendment submission      Date of final          Citation/
             date                   publication          description
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                              * * * * * * *
July 18, 2008................  September 23, 2008..  ASMC 880-X-8B-.07
                                                      and 880-X-11D-.06.
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[FR Doc. E8-22171 Filed 9-22-08; 8:45 am]
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