[Federal Register Volume 77, Number 103 (Tuesday, May 29, 2012)]
[Rules and Regulations]
[Pages 31486-31493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12933]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-126-FOR; OSM-2008-0012]


Virginia Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving an amendment to the Virginia regulatory 
program under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). The amendment revises the Virginia Coal Surface 
Mining Reclamation Regulations pertaining to ownership and control, 
valid existing rights, self-bonding, and availability of records. 
Virginia intends to revise its program to be consistent with the 
corresponding Federal regulations and SMCRA and is responding, in part, 
to a 30 CFR part 732 letter.

DATES: Effective May 29, 2012.

FOR FURTHER INFORMATION CONTACT: Mr. Earl Bandy, Director, Knoxville 
Field Office, Telephone: (865) 545-4103. Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Virginia 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 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.'' 30 U.S.C. 1253(a)(1) and (7). On the 
basis of these criteria, the Secretary of the Interior conditionally 
approved the Virginia program on December 15, 1981. You can find 
background information on the Virginia program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval of the Virginia program in the December 15, 1981, Federal 
Register (46 FR 61088). You can also find later actions concerning 
Virginia's program and program amendments at 30 CFR 946.12, 946.13, and 
946.15.

II. Submission of the Amendment

    By letter dated June 11, 2008, the Virginia Department of Mines, 
Minerals, and Energy (Virginia) sent us an informal proposed amendment 
to its program for a pre-submission review (VA-126-INF). We reviewed 
the pre-submission and responded to Virginia, with comments, via 
electronic mail on July 2, 2008. By letter dated July 17, 2008, 
Virginia formally submitted the proposed amendments to its program 
(Administrative Record No. VA-1089).
    We announced receipt of the proposed amendment in the August 29, 
2008, Federal Register (73 FR 50915). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on September 29, 2008. No comments were received.
    OSM's review of the July 17, 2008, submittal identified several 
issues that we presented to Virginia. The first discussion occurred by 
telephone on September 4, 2008. As a result of that discussion, 
Virginia submitted on the same date, via electronic mail, Memorandum 
13-86 which specifies application processing time limits for 
new permits and revision applications (Administrative Record No. VA-
1093).

[[Page 31487]]

The complete text of the Memorandum can be found at http://www.Virginia.virginia.gov/DMLR/docs/operatormemos. A subsequent meeting 
was held on October 16, 2008 (Administrative Record No. VA-1099). In an 
electronic mail message dated October 29, 2008 (Administrative Record 
No. VA-2000), Virginia provided its position in response to OSM's 
comments and agreed to expeditiously submit additional changes. On 
November 3, 2008, Virginia responded by submitting regulation changes 
via electronic mail (Administrative Record No. VA-2001). OSM provided 
additional comments on the regulation changes on November 13, 2008 
(Administrative Record No. VA-2002), and Virginia responded to these 
comments on November 20, 2008, by electronic mail (Administrative 
Record No. VA-2003). We announced receipt of the additional revisions 
in the April 17, 2009, Federal Register (74 FR 17806). The public 
comment period ended on May 4, 2009. Public comments were filed jointly 
by the Southern Appalachian Mountain Stewards (SAMS) and the Sierra 
Club. These comments have been addressed at the section titled SUMMARY 
AND DISPOSITION OF COMMENTS.
    On March 25, 2011, OSM sent a letter (Administrative Record No. VA-
2007) to Virginia informing them that their provisions at 4 VAC25-130-
761.16(d)(1)(vii) and 4VAC25-130-761.16(d)(3), were inconsistent with 
the Federal counterparts. The language proposed by Virginia would have 
required that an applicant provide reasons for requesting an initial 30 
day extension to the comment period.
    The federal counterpart provisions, at 30 CFR 761.16(d)(1)(vii) and 
761.16(d)(3), are clear that the initial 30-day extension will be 
granted, without cause, upon request.
    Subsequent to several extensions (Administrative Record numbers VA-
2008, VA-2009, VA-2010), Virginia submitted, by electronic mail, on 
June 13, 2011 (Administrative Record No. VA-2012), revised language 
that is substantially identical to the corresponding federal 
counterparts.

III. OSM's Findings

    The 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. Any revisions that we do not specifically 
discuss below concern non-substantive wording or editorial changes.

a. Minor Revisions to Virginia's Rules

    Virginia proposed minor wording changes to the following 
previously-approved rules:

 
------------------------------------------------------------------------
      State regulation         Federal regulation           Topic
------------------------------------------------------------------------
4VAC25-130-773.13...........  30 CFR 773.6........  Public
                                                     Participation.
4VAC25-130-773.20(a)........  30 CFR 773.21(a)....  Improvidently Issued
                                                     Permits, General
                                                     Procedures.
4VAC25-130-774.12(e)........  30 CFR 774.11.......  Post-Permit Issuance
                                                     Requirements.
4VAC25-130-774.17(a)........  30 CFR 774.17.......  Transfer,
                                                     Assignment, or Sale
                                                     of Permit Rights.
4VAC25-130-778.13(c), (d),    30 CFR 778.11.......  Identification of
 (k), (m).                                           Interests.
4 VAC25-130-801.13(a)(3),     None................  Self-bonding.
 (a)(7), (b).
------------------------------------------------------------------------

    Because these changes are minor, we find that they will not make 
Virginia's regulations less effective than the corresponding Federal 
regulations and can be approved.

b. Revisions to Virginia's Rules That are Substantively Identical to, 
and Therefore No Less Effective Than, the Corresponding Provisions of 
the Federal Regulations.

 
------------------------------------------------------------------------
      State regulation         Federal regulation           Topic
------------------------------------------------------------------------
4VAC25-130-700.5............  30 CFR 701.5........  Definition of
                                                     Applicant Violator
                                                     System or AVS;
                                                     Control or
                                                     Controller; Knowing
                                                     or knowingly; Own,
                                                     Owner, or
                                                     Ownership.
4VAC25-130-700.5............  30 CFR 800.5........  Definition of Self-
                                                     Bond.
4VAC25-130-700.5............  30 CFR 701.5........  Definitions of
                                                     Transfer,
                                                     Assignment, or Sale
                                                     of Permit Rights;
                                                     Violation;
                                                     Violation, Failure,
                                                     or Refusal;
                                                     Violation Notice;
                                                     Willful or
                                                     Willfully.
4VAC25-130-700.5............  30 CFR 761.5........  Definition of Valid
                                                     Existing Rights.
4VAC25-130-761.11...........  30 CFR 761.11.......  Areas Where Mining
                                                     is Prohibited or
                                                     Limited.
4VAC25-130-761.13...........  30 CFR 761.12(a)....  Exception for
                                                     Existing
                                                     Operations.
4VAC25-130-761.16(a), (b)(1)- 30 CFR 761.16.......  Submission and
 (4), (c), (d)(1)(i)-(viii)                          Processing of
 (d)(2),(3), (e), (f), and                           Requests for Valid
 (g).                                                Existing Rights
                                                     Determinations.
4VAC25-130-772.12(b)(14) and  30 CFR 772.12(b)(14)  Permit Requirements
 (d)(2)(iv).                   and (d)(2)(iv).       for Exploration
                                                     Removing More Than
                                                     250 Tons of Coal or
                                                     Occurring on Lands
                                                     Designated as
                                                     Unsuitable for
                                                     Surface Coal Mining
                                                     Operations.
4VAC25-130-773.15(b)(1).....  30 CFR 773.7........  Review of Permit
                                                     Applications.
4VAC25-130-773.20(c)(3).....  30 CFR 773.21(c)....  Improvidently Issued
                                                     Permits: General
                                                     Procedures.
4VAC25-130-774.12(a), (d),    30 CFR 774.11(a),     Post-Permit Issuance
 (e).                          (b).                  Requirements

[[Page 31488]]

 
4VAC25-130-774.17(a)........  30 CFR 774.17(a)....  Transfer,
                                                     Assignment, or Sale
                                                     of Permit Rights.
4VAC25-130-778.13(a)-(e)....  30 CFR 778.11(a)-(d)  Identification of
                                                     Interests.
4VAC25-130-778.14(c)........  30 CFR 778.14(c)....  Violation
                                                     Information.
------------------------------------------------------------------------

    Because the proposed rules contain language that is substantively 
identical to the corresponding Federal regulations, we find that they 
are no less effective than the corresponding Federal regulations and 
can be approved.

c. Revisions to Virginia's Rules That Are Not the Same as the 
Corresponding Provisions of the Federal Regulations

    1. At 4VAC25-130-773.15--Review of Permit Applications:
    (a) At subsection (a)(1) Virginia proposes to require that the 
Division review the application for a permit, revision, or renewal; 
written comments and objections; information from AVS; and records of 
any informal conference or hearing held on the application--and issue a 
written decision, within a reasonable time, either granting, requiring 
modification of, or denying the application. If an informal conference 
is held, the decision will be made within 60 days of the close of the 
conference.
    The Federal regulations at 30 CFR 773.7(a) require that the 
regulatory authority must specify a reasonable time (set by the 
regulatory authority) for decisions in those cases where no informal 
conference has been requested. Virginia's Memorandum to Operators 
13-86 (Administrative Record No. VA-1093) provides time limits 
for permit and revision applications, but does not specifically address 
renewal applications.
    By electronic mail on November 20, 2008 (Administrative Record No. 
VA-2003), Virginia clarified its permit renewal review process. It 
stated in part, ``A permit renewal is different than a new permit or 
revision application, in that there is a set date in which it must be 
submitted to the Division * * * at least 120 days before the existing 
permit's expiration date. Failure to do so would subject the operation 
to cessation of mining operations on the expiration date if a renewal 
application was not timely submitted and the permittee was not acting 
diligently and in good faith with regard to the permit application. For 
timely submitted applications, the Division's decision on the renewal 
application is, for the most part, rendered by the existing permit's 
expiration date.''
    In effect, Virginia must render a decision on a permit renewal 
application by the expiration date of the existing permit. Virginia 
requires that a renewal application be submitted 120 days prior to the 
expiration of the existing permit to accommodate the required filing 
and public notice procedures. Therefore, the time period for decisions 
is the aforementioned 120-day application timeframe. For these reasons, 
we find that the proposed revisions are no less effective than the 
corresponding Federal regulations at 30 CFR 773.7(a) and can be 
approved.
    (b) At subsection (b)(4)(i)(C), Virginia proposes to revise its 
violation review procedures to delete the remining exclusion for those 
permits, or renewals, issued before September, 2004. We find that these 
revisions are no less stringent than the provisions of section 510(e) 
of SMCRA, as modified by the Tax Relief and Health Care Act of 2006, 
which address permit approval or denial and therefore can be approved.
    2. At 4VAC25-130-773.21--Improvidently Issued Permits; Rescission, 
Virginia proposes to make the requirements of this section applicable 
to permit suspensions, as well as permit rescissions. Virginia is also 
requiring that the notice of permit suspension or rescission be posted 
at its offices and on its internet home page. It also provides the 
procedures for the challenge and review of a person's ownership and 
control listing. Additionally, if a permittee files for an 
administrative review of the notice or decision pertaining to ownership 
and control, Virginia is requiring that the notice of public hearing be 
posted at the division office located nearest to the permit.
    We find that the proposed revisions are no less effective than the 
Federal regulations at 30 CFR 773.23(a)-(d), which address the 
administrative review and notification requirements for the suspension 
or rescission of improvidently issued permits, and can be approved.
    3. At 4VAC25-130-840.14(c)(2)--Availability of Records, Virginia 
proposes to post a notice that specifies how and where it will maintain 
records pertaining to records, reports, inspection materials, permit 
applications, and other information for public inspection and copying. 
The notice will be sent to Circuit Court Clerks of coal-producing 
counties and will be posted at all Virginia Division of Mined Land 
Reclamation offices. Virginia will maintain the records at its 
principal office and the information will also be made available, upon 
request, at its field office as well as any Federal, State, or local 
government office(s) located in the county where the mining is, or may 
be proposed to occur.
    Virginia is complying with the Federal regulations at 30 CFR 
840.14(b) and (c) that require that all pertinent permit information be 
made available for public inspection by either maintaining said 
information at Federal, State, or local government offices in the 
county where mining is occurring or proposed to occur, or mailing or 
electronically mailing said information to a requestor based on a 
description maintained at the locations named above. We find that the 
proposed revisions are no less effective than the Federal regulations 
at 30 CFR 840.14(b) and (c) and therefore can be approved.

d. Revisions to Virginia's Rules With No Corresponding Federal 
Regulations

    1. At 4 VAC 25-130-700.5--Definitions, Virginia proposes to delete 
the term and definition of Cognovit Note. It is replaced by Indemnity 
Agreement in 4 VAC25-130-801.13. There is no Federal counterpart to 
either the definition of Cognovit Note or Indemnity Agreement. However, 
the term Indemnity Agreement is used in the definitions of Surety Bond, 
Collateral Bond, and Self-Bond, in 30 CFR 800.5, whereas the term 
Cognovit Note does not appear in the Federal regulations. Moreover, the 
term Indemnity Agreement is defined in a manner that is consistent with 
its usage in the aforementioned Federal regulatory definitions. 
Therefore, we find that these changes are not inconsistent with the 
requirements of SMCRA and the Federal regulations and can be approved.
    2. At 4 VAC25-130-773.15(a)(3)-(4)--Review of Permit Applications, 
Virginia proposes to require its review of information regarding the 
permit applicant's and/or operator's permit

[[Page 31489]]

histories, business structure, and ownership and control relationships. 
Virginia may also conduct other ownership and control reviews, as 
necessary, in those cases where the applicant has no previous mining 
history. While there is no direct Federal counterpart to the proposed 
revisions, we find that the revisions are consistent with the general 
Federal provisions pertaining to permit application review at 30 CFR 
773.7 and therefore can be approved.
    3. At 4 VAC25-130-774.12(b), (c)--Post-Permit Issuance 
Requirements, Virginia proposes to specify the permittee's required 
actions in the event: (1) Said permittee fails to comply with the 
remedial measures of an enforcement action, or (2) the identification 
of interests information in the permit application changes. While there 
is no direct Federal counterpart to the proposed revisions, we find 
that the revisions are consistent with the general Federal provisions 
pertaining to post-permit issuance at 30 CFR 774.11 and therefore can 
be approved.
    4. At 4 VAC25-130-778.13(e), (f), (g)--Identification of Interests:
    (a) At subsection (e), Virginia proposes to require that a permit 
application include a list of all names under which the applicants et 
al operate or previously operated a surface coal mining operation 
within a 5-year period preceding the submission date of the 
application.
    (b) At subsection (f), Virginia proposes to require that a permit 
application include a list of any pending permit applications with 
identifying information for the applicant and operator (if different 
from the applicant).
    (c) At subsection (g), Virginia proposes to require that a permit 
application include certain identifying information for the permittee 
and operator. This includes name, address, tax identification numbers, 
permits numbers, and ownership relationship.
    While there are no direct Federal counterparts to the proposed 
revisions, we find that the revisions are consistent with the general 
Federal provisions pertaining to permit application review at 30 CFR 
778.11 and therefore can be approved.
    5. At 4 VAC 25-130-800.52--Bond Forfeiture Reinstatement 
Procedures:
    (a) Subsection (a), Virginia proposes to delete the reference to 
the Board of Conservation and Economic Development, as the entity no 
longer exists.
    (b) Subsection (a)(5), Virginia proposes to replace the term civil 
penalty with reinstatement fee. This revision will differentiate the 
fee from the civil penalty that may be assessed under 4 VAC25-130-845. 
Virginia also proposes to allow the use of the reinstatement fees for 
other investigations, research, or abatement actions relating to lands 
and waters affected by coal surface mining activities.
    There are no Federal counterpart regulations. We find that the 
revisions are not inconsistent with the requirements of SMCRA and the 
Federal regulations and can be approved.
    6. At 4 VAC 25-130-801.12(d)--Entrance Fee and Bond, Virginia 
proposes to require the annual certification of the financial solvency 
of a permittee during the term of the permit. There is no Federal 
counterpart regulation. We find that the revision is not inconsistent 
with the requirements of SMCRA and the Federal regulations and can be 
approved.
    7. At 4 VAC 25-130-801.13--Self-Bonding:
    (a) Subsection (a), Virginia proposes to allow self-bonds from 
applicants of proposed surface coal mining operations in the form of an 
indemnity agreement. Virginia also proposes to change ``paragraph'' to 
``subdivision'' in subsections (a)(3), (a)(7), and (b).
    (b) Subsection (a)(1)(iv), Virginia proposes to require that an 
applicant of a proposed surface coal mining operation provide evidence 
indicating a history of satisfactory continuous operation.
    (c) Subsection (a)(3), Virginia proposes to require that an 
applicant of a proposed surface mining operation or associated facility 
submit evidence substantiating the applicant's financial solvency, with 
appropriate financial documentation.
    (d) Virginia proposes to replace cognovits note with indemnity 
agreement (agreement) throughout the section.
    (e) Virginia proposes to delete existing subsection (b) pertaining 
to self-bonding provisions for surface coal mining operations. The 
surface coal mining permit requirements for self-bonding are addressed 
in subsection (a).
    While there are no direct Federal counterparts to the proposed 
revisions, we find that the revisions are consistent with the general 
Federal provisions pertaining to self-bonding at 30 CFR 800.23 and 
therefore can be approved.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. VA- 1090). The Virginia Department of Historic Resources 
commented that no historic properties will be affected by the 
provisions of the proposed amendment (Administrative Record No.VA-
1095). We received several comments filed jointly by the Southern 
Appalachian Mountain Stewards (SAMS) and the Sierra Club 
(Administrative Record No.VA-2006). Responses to those comments follow. 
The joint commenters are referred to as ``SAMS/Sierra Club'' or ``the 
commenters.'' SAMS/Sierra Club contend that OSM must disapprove the 
portion of the amendment that, according to them, ``would effectively 
require any person who disputes the property rights assertion at the 
root of a [valid existing rights] VER claim either to commence 
litigation against the permit applicant prior to the expiration of the 
comment period on the VER request or else allow [the Virginia 
Department of Mines, Minerals & Energy] DMME to `evaluate the merits of 
the information in the record' with respect to disputed property rights 
and then to `determine whether the [permit applicant] has demonstrated 
that the requisite property rights exist.' '' The Virginia proposed 
provision SAMS/Sierra Club refer to is at 4 VAC 25-130-130-
761.16(e)(3). They argue that this provision is ``fundamentally flawed 
in at least two respects.'' SAMS/Sierra Club Comment #1: First, SAMS/
Sierra Club state that the amendment would unlawfully shift the burden 
of commencing property rights dispute litigation to persons who oppose 
approval of the permit application, rather than placing the burden on 
the permit applicant, which, according to SAMS/Sierra Club, is mandated 
by SMCRA at 30 U.S.C. 1260(a). This statutory provision states that 
``[t]he applicant for a permit, or revision of a permit, shall have the 
burden of establishing that his application is in compliance with all 
the requirements of the applicable State or Federal program.'' Thus, 
according to the commenters, a permit applicant must seek judicial 
resolution of a property rights dispute in order to satisfy the 
property rights component of a VER determination; SMCRA does not, they 
contend, allow a State regulatory authority to undertake such an 
adjudication. For these reasons, SAMS/Sierra Club insist that OSM is 
required, pursuant to 30 CFR 732.17(h)(10), to disapprove 4 VAC 25-130-
130-761.16(e)(3)(i) and clarify that ``federal law does not permit DMME 
to adopt any regulation that would relieve permit applicants of the 
obligation to obtain a

[[Page 31490]]

valid adjudication of any property rights dispute pertinent to the 
`right to mine' demonstration that each permit applicant must make, 
including any claim to VER that may be a part of the applicant's `right 
to mine' demonstration. Permit applicants must commence and complete 
such proceedings in order to submit a complete application; state 
regulatory authorities may not shift that burden to persons who dispute 
the applicant's right to mine, including any property-rights based 
claim to VER that an applicant may make.''
    OSM's Response: We disagree with SAMS/Sierra Club. The Virginia 
provision is identical in substance to the counterpart Federal 
regulation at 30 CFR 761.16(e)(3)(i), which states as follows:

    The agency must issue a determination that you have not 
demonstrated valid existing rights if your property rights claims 
are the subject of pending litigation in a court or administrative 
body with jurisdiction over the property rights in question. The 
agency will make this determination without prejudice, meaning that 
you may refile the request once the property rights dispute is 
finally adjudicated. This paragraph applies only to situations in 
which legal action has been initiated as of the closing date of the 
comment period under paragraph (d)(1) or (d)(3) of this section.

    The VER regulations published by OSM on December 17, 1999 (64 FR 
70766-70838), which include the provision quoted above, were challenged 
by the National Mining Association and upheld by the United States 
Court of Appeals for the District of Columbia Circuit in Nat'l Mining 
Ass'n v. Kempthorne, 512 F.3d 702 (D. C. Cir. 2008), cert. denied 172 
L. Ed. 2d 639 (U.S. Dec. 1, 2008). Thus, as noted in Finding III(b) 
above, the Virginia provision at 4 VAC 25-130-130-761.16(e)(3)(i) is 
substantively identical to, and no less effective than, its Federal 
counterpart, and is therefore approved.
    SAMS/Sierra Club Comment #2: Second, the commenters assert that the 
Virginia regulation at 4 VAC 25-130-130-761.16(e)(3)(ii), which would 
permit the DMME ``to evaluate the merits of the information in the 
record and determine whether the person has demonstrated that the 
requisite property rights exist under subdivision (a), (c)(1), or 
(c)(2) of the valid existing rights definition * * *, as appropriate,'' 
is ``flatly inconsistent with SMCRA's dictate that `nothing in this Act 
shall be construed to authorize the regulatory authority to adjudicate 
property rights disputes.'' 30 U.S.C. 1260(b)(6). Instead, SAMS/Sierra 
Club argues, SMCRA requires the regulatory authority to ``withhold 
approval of the pertinent permit application unless and until the 
permit applicant obtains a favorable adjudication of that dispute in 
accordance with pertinent state law[.]'' For this reason, they contend, 
the DMME may not ``evaluate the merits of information in the record'' 
to ``determine whether the [permit applicant] has demonstrated that 
requisite property rights exist, as provided for in paragraph 
(e)(3)(ii), because to do so would ``constitute an administrative 
adjudication of property rights that SMCRA flatly prohibits a 
regulatory authority from undertaking.'' Therefore, the commenters 
conclude, OSM must disapprove 4 VAC 25-130-130-761.16(e)(3)(ii), and 
``make clear that federal law does not permit DMME to adopt any 
regulation that would empower it to adjudicate any property rights 
dispute pertinent to any of its activities under the approved Virginia 
state program.''
    OSM's Response: We disagree with SAMS/Sierra Club, based precisely 
on the rationale set forth in our response to SAMS/Sierra Club Comment 
1, above. The Virginia provision is substantively identical 
to, and therefore no less effective than, its Federal counterpart 
addressing valid existing rights claims at 30 CFR 761.16(e)(3)(ii), 
which states:

    If the record indicates disagreement as to the accuracy of your 
property rights claims, but this disagreement is not the subject of 
pending litigation in a court or administrative agency of competent 
jurisdiction, the agency must evaluate the merits of the information 
in the record and determine whether you have demonstrated that the 
requisite property rights exist under paragraph (a), (c)(1), or 
(c)(2) of the definition of valid existing rights in Sec.  761.5, as 
appropriate. The agency must then proceed with the decision process 
under paragraph (e)(2) of this section.

    This Federal provision was part of the same VER challenge that 
resulted in the upholding of all of the Federal VER regulations 
promulgated by OSM on December 17, 1999 (64 FR 70766-70838). Nat'l 
Mining Ass'n v. Kempthorne, supra. The Federal regulation provides, if 
there is no pending litigation in a court or administrative agency of 
competent jurisdiction on the question of property rights, the 
regulatory agency must evaluate the merits of the information submitted 
and determine if the applicable regulatory provisions for demonstrating 
requisite property rights under the definition of valid existing rights 
have been satisfied. As indicated, the Virginia provision is 
substantively identical to the Federal provision. For these reasons, we 
approve the Virginia regulation at 4 VAC 25 130 130 761.16(e)(3)(ii).
    SAMS/Sierra Club Comment #3: The commenters also objected to the 
comment period provided for by 4 VAC 25-130-761.16(d)(3). The 
commenters contend that the 30 day comment period for a VER 
determination, which may be expanded to 60 days at the DMME's 
discretion, ``establishes an unreasonably brief period within which 
coalfield citizens who wish to challenge a VER claim must commence 
litigation to resolve an underlying property rights dispute,'' as set 
forth in 4 VAC 25-130-130-761.16(e)(3)(ii). The comment period would, 
according to SAMS/Sierra Club, ``have the effect of limiting citizen 
access to necessary legal services, or even foreclosing such access 
altogether, due to the likely refusal of attorneys to accept matters on 
such an emergency footing [.]'' Thus, according to the commenters, even 
if it were lawful to require citizens to commence property rights 
dispute litigation (which the commenters say is certainly not the 
case), ``OSM's duty to foster participation in the Virginia program 
would require * * * [it] to withhold approval of DMME's proposed permit 
amendment unless and until DMME provides at least a 90-day public 
comment period * * *, together with provision for mandatory extension * 
* * for an additional 30 days if an attorney representing a person who 
intends to file a property rights dispute establishes a good faith need 
for additional time to prepare and file litigation.''
    OSM's Response: SAMS/Sierra Club provides no rationale for 
requiring DMME to establish a minimum comment period of 90 days for a 
VER determination, with a mandatory 30 day extension based upon a good 
faith need for more time by an attorney representing the would-be 
plaintiff in a property rights dispute. Indeed, the Federal regulation 
at 30 CFR 761.16(d)(3), which is now settled law, establishes a 30 day 
period, with an additional 30 days upon request, followed by the 
possibility of further extensions at the discretion of the regulatory 
authority, based upon a showing of good cause by the requestor; it does 
not, however, mandate a comment period longer than 60 days, as 
requested by SAMS/Sierra Club. Therefore, we disagree with the 
commenters that Virginia must provide a longer comment period than is 
allowed under the Federal regulatory counterpart.
    SAMS/Sierra Club Comment #4: Finally, the commenters request that, 
if it has not done so, OSM must submit

[[Page 31491]]

the proposed amendment to Virginia's State Historic Preservation 
Officer (SHPO) and to the Advisory Council on Historic Preservation 
(ACHP) for comment, pursuant to 30 CFR 732.17(h)(4).
    OSM's Response: We sent letters to both the Virginia SHPO and the 
ACHP on August 12, 2008 (Administrative Record No.VA-1090). By letter 
dated September 9, 2008, the SHPO notified us that no impacts to 
historic properties were anticipated if we were to approve this 
amendment (Administrative Record No.VA-1095).

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on 
August 12, 2008, we requested comments on the amendments from various 
Federal agencies with an actual or potential interest in the Virginia 
program (Administrative Record No. VA-1090). The United States 
Department of the Interior, Bureau of Land Management responded and 
stated that they found no inconsistencies with the proposed changes and 
the Federal Laws, which govern mining (Administrative Record No. 1067). 
The United States Department of Agriculture, Natural Resources 
Conservation Services responded and stated that they did not object to 
the amendment and deemed the changes appropriate.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record No. VA-1090). No comments 
were received.
    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 Virginia proposed to 
make in this amendment pertain to air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment.

V. OSM's Decision

    Based on the above findings, we are approving the amendment sent to 
us by Virginia on July 17, 2008. To implement this decision, we are 
amending the Federal regulations at 30 CFR part 946, which codify 
decisions concerning the Virginia program. Pursuant to 5 U.S.C. 
553(d)(3), an agency may, upon a showing of good cause, waive the 30 
day delay of the effective date of a substantive rule following 
publication in the Federal Register, thereby making the final rule 
effective immediately.
    We find that good cause exists under 5 U.S.C. 553(d)(3) to make 
this final rule effective immediately. Because 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 regulation effective immediately will expedite 
that process.

VI. Procedural Determinations

Executive Order 12630--Takings

    The provisions in the rule based on counterpart Federal regulations 
do not have takings implications. This determination is based on the 
analysis performed for the counterpart Federal regulations. The 
revisions made at the initiative of the State that do not have Federal 
counterparts have also been reviewed and a determination made that they 
do not have takings implications. This determination is based on the 
fact that the provisions are administrative and procedural in nature 
and are not expected to have a substantive effect on the regulated 
industry.

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 Federal regulations 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)).

[[Page 31492]]

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 provisions in 
this rule that are based on counterpart Federal regulations 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.). 
This determination is based on an analysis prepared for the counterpart 
Federal regulations and the certification made that such regulations 
would not have a significant economic impact upon a substantial number 
of small entities. The Department of the Interior also certifies that 
the provisions in this rule that are not based upon counterpart Federal 
regulations 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.). This determination is based on the fact 
that the provisions are administrative and procedural in nature and are 
not expected to have a substantive effect on the regulated industry.

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 a portion 
of the State provisions are 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. For the portion of 
the State provisions that is not based upon counterpart Federal 
regulations, this determination is based upon the fact that the State 
provisions are administrative and procedural in nature and are not 
expected to have a substantive effect on the regulated industry.

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 a portion of 
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. For the portion of the State provisions that is not 
based upon counterpart Federal regulations, this determination is based 
upon the fact that the State provisions are administrative and 
procedural in nature and are not expected to have a substantive effect 
on the regulated industry.

List of Subjects in 30 CFR Part 946

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 21, 2011.
Thomas D. Shope,
Regional Director, Appalachian Region.

    Editor's note:  This document was received by the Office of the 
Federal Register on May 23, 2012.

    For the reasons set out in the preamble, 30 CFR part 946 is amended 
as set forth below:

PART 946--VIRGINIA

0
1. The authority citation for part 946 continues to read as follows:

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


0
2. Section 946.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  946.15  Approval of Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
July 17, 2008.................  May 29, 2012.....  4VAC 25-130-700.5,
                                                    4VAC25-130-761.11,
                                                    4VAC25-130-761.13,
                                                    4VAC25-130-761.16,
                                                    4VAC25-130-772.12,
                                                    4VAC 25-130-773.13,
                                                    4VAC 25-130-773.15,
                                                    4VAC 25-130-
                                                    773.20(c)(3), 4VAC
                                                    25-130-773.21, 4VAC
                                                    25-130-774.12, 4VAC
                                                    25-130-774.17(a),
                                                    4VAC 25-130-778.13,
                                                    4VAC 25-130-
                                                    778.14(c), 4VAC 25-
                                                    130-800.52(a) and
                                                    (a)(5), 4VAC 25-130-
                                                    801.12(c) and (d),
                                                    4VAC 25-130-801.13,
                                                    4VAC 25-130-
                                                    840.14(c)(2), 4VAC
                                                    25-130-846.2.
------------------------------------------------------------------------


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[FR Doc. 2012-12933 Filed 5-25-12; 8:45 am]
BILLING CODE 4310-05-P