[Federal Register Volume 73, Number 238 (Wednesday, December 10, 2008)]
[Rules and Regulations]
[Pages 74943-74945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29206]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 924

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


Mississippi 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 Mississippi regulatory program 
(Mississippi program) under the Surface Mining Control and Reclamation 
Act of 1977 (SMCRA). Mississippi proposed revisions to its regulations 
and statute regarding ``valid existing rights'' as they pertain to 
designation of lands as unsuitable for surface coal mining operations. 
Mississippi intends to revise its program to be consistent with SMCRA.

DATES: Effective Date: December 10, 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 Mississippi 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 Mississippi 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 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 find later actions on the 
Mississippi program at 30 CFR 924.10, 924.15, 924.16, and 924.17.

II. Submission of the 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). In the same document, we opened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the adequacy of the amendment. No one requested a public 
hearing or meeting. The public comment period closed on June 23, 2006.
    During our review of the amendment, we identified concerns about 
Mississippi's use of the term ``Valid Rights'' in its statute while the 
Federal regulations and statute uses the term ``Valid Existing 
Rights.'' We notified Mississippi of these concerns by letter dated 
August 17, 2006 (Administrative Record No. MS-0414).
    By letter dated May 30, 2008 (Administrative Record No. MS-0416-
02), Mississippi provided explanatory information concerning the 
meaning of the terms ``valid rights'' and ``valid existing rights'' as 
used in the State statutes and regulations. By e-mail dated July 23, 
2008 (Administrative Record No. MS-0416-03), Mississippi sent us a 
revised copy of its regulations.
    Based upon Mississippi's explanatory information and revisions to 
its amendment, we reopened the public comment period in the August 26, 
2008, Federal Register (73 FR 50263). No one requested a public hearing 
or meeting. The public comment period closed on September 10, 2008.

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 as described below.

A. Changes to the Mississippi Code Annotated Section 53-9-71(4)

    Mississippi proposed to revise section 53-9-71(4) to provide that 
after July 1, 1979, and subject to valid rights, no surface coal mining 
operations shall be permitted on certain lands. Those certain lands are 
specified in section 53-9-71(4) of the Mississippi statute.
    The Federal counterpart statute to Mississippi's above statute is 
found at section 522(e) of SMCRA. Section 522(e) prohibits or restricts 
surface coal mining operations on certain lands, ``subject to valid 
existing rights,'' after the date of SMCRA's enactment (August 3, 
1977), including, among other areas, units of the National Park System, 
Federal lands in national forests, and buffer zones for public parks, 
public roads, occupied dwellings, and cemeteries. The Act provides that 
these prohibitions and restrictions do not apply to operations in 
existence or under a permit on the date of enactment.
    Mississippi's statute prohibits or restricts coal mining operations 
on the same lands as its Federal counterpart. It makes these 
prohibitions or restrictions subject to Valid Rights. We received a 
letter dated May 30, 2008 (Administrative Record No. MS-0416-02), from 
the General Counsel for the Mississippi Department of Environmental 
Quality stating that it was his opinion that the term ``valid rights'' 
as used in Sec.  53-9-71(4) means ``valid existing rights'' as used in 
the State regulations and SMCRA. In addition, these prohibitions and 
restrictions do not apply to operations in existence or under a permit 
on the date of enactment of the State statute. Because rights that 
would exist under the Federal statute would also exist under the 
Mississippi statute, we find that Mississippi's proposed statute is no 
less stringent than the Federal statute.

B. Changes to the Mississippi Surface Coal Mining Regulations (MSCMR)

    Mississippi proposed to revise its regulations in order to 
reconcile them with the State's above proposed statute revision. In 
this statute, Mississippi uses the term ``valid rights.'' Mississippi 
clarified that the term ``valid rights'' as used in the State statute 
means the same as its term ``valid existing rights'' as used in the 
State regulations at MSCMR Section 105. Following are the regulations 
that Mississippi proposed to add or revise:

MSCMR Section 105. Definitions

    Mississippi proposed 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.

MSCMR Section 1101. Authority

    Mississippi proposed to revise this section to read as follows:


[[Page 74944]]


    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.

MSCMR Section 1105. Areas Where Mining is Prohibited or Limited

    Mississippi proposed 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:

    SMCRA does not define or explain the term ``valid existing rights'' 
(VER) in the context of section 522(e) of the Act; however, our 
rulemaking on December 17, 1999 (64 FR 70766), does. Our regulations 
define VER as a set of circumstances under which a person may, subject 
to regulatory authority approval, conduct surface coal mining 
operations on lands where section 522(e) of the Act and 30 CFR 761.11 
would otherwise prohibit such operations. The Mississippi regulation at 
MSCMR section 105 contains a definition for VER that is substantively 
the same as the Federal definition for VER. Also, Mississippi added a 
new regulation defining ``valid rights,'' found in the State statute at 
section 53-9-71(4), as having the same meaning as its definition of 
``valid existing rights'' as defined in its regulations. The regulation 
revisions at MSCMR sections 1104 and 1105 simply clarify that surface 
coal mining operations on lands where mining is prohibited or 
restricted are subject to VER. Finally, we received a letter dated May 
30, 2008 (Administrative Record No. MS-0416-02), from the General 
Counsel for the Mississippi Department of Environmental Quality stating 
that it was his opinion that the term ``valid rights'' as used in Sec.  
53-9-71(4) means ``valid existing rights'' as used in the State 
regulations and SMCRA. For the above reasons, we find that the 
revisions to Mississippi's regulations are no less effective than the 
Federal regulations and we are approving them.

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 April 20, 2006, and August 15, 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 Mississippi program (Administrative Record No. MS-0416-
04). 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.). On August 15, 2008, we requested comments on the 
proposed amendments from the EPA (Administrative Record No. MS-0416-
04). The EPA did not respond to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment Mississippi 
sent us on April 5, 2006, and as revised on July 23, 2008.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 924, which codify decisions concerning the Mississippi 
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. SMCRA requires consistency of State and Federal standards.

VI. 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 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.

[[Page 74945]]

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: November 20, 2008.
William L. Joseph,
Acting Mid-Continent Regional Director.

0
For the reasons set out in the preamble, 30 CFR part 924 is amended as 
set forth below:

PART 924--MISSISSIPPI

0
1. The authority citation for part 924 continues to read as follows:

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

0
2. Section 924.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  924.15  Approval of Mississippi regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
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                              * * * * * * *
April 5, 2006.................  December 10, 2008  MSCMR 53-9-71(4)
                                                    Sections: 105, 1101,
                                                    and 1105.
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 [FR Doc. E8-29206 Filed 12-9-08; 8:45 am]
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