[Federal Register Volume 84, Number 205 (Wednesday, October 23, 2019)]
[Rules and Regulations]
[Pages 56696-56698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22946]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[SATS No. VA-128-FOR; Docket ID: OSM-2016-0007; S1D1S SS08011000 
SX066A000 201S180110; S2D2S SS08011000 SX066A000 20XS501520]


Virginia 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 
(OSMRE), are approving an amendment to the Virginia regulatory program 
(the Virginia 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 (the State regulations). The 
changes involve adding a provision to Virginia Administrative Code 
(VAC) to require Virginia to enter permit information into the Federal 
Applicant Violator System (AVS) and add a provision to the Virginia 
program to specify that the final compliance review conducted prior to 
permit issuance must occur no more than five business days before 
issuance.

DATES: The effective date is November 22, 2019.

FOR FURTHER INFORMATION CONTACT: Mr. Roger Calhoun, Field Office 
Director, Charleston Field Office. Telephone: (304) 347-7158. Email: 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Virginia Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews

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, State laws and regulations 
that govern surface coal mining and reclamation operations in 
accordance with the requirements of this Act and consistent with the 
Federal regulations. See 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, in 
the December 15, 1981, Federal Register (46 FR 61088). You can also 
find later actions concerning the Virginia program and program 
amendments at 30 CFR 946.12, 946.13, and 946.15.

II. Submission of the Amendment

    By letter dated April 29, 2016 (Administrative Record No. VA 2033) 
Virginia sent an amendment to its program under SMCRA (30 U.S.C. 1201 
et seq.).
    We announced receipt of the proposed amendment in the March 31, 
2017, Federal Register (82 FR 16010). 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. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on May 1, 2017. No public comments were received.

III. OSMRE's Findings

    Virginia submitted this program amendment to ensure consistency of 
Virginia and Federal regulations with respect to the AVS. The 
submission included changes to Title 4 of the VAC that includes the 
entry of permit information into the AVS upon receipt and review of an 
administratively complete application and to conduct a final compliance 
review prior to permit issuance no more than five business days before 
permit issuance. (Administrative Record No. VA 2033).
    We are approving the amendment. Our specific findings concerning 
Virginia's amendment under SMCRA and the Federal regulations at 30 CFR 
773.8 and 773.12 and the substantive changes to Virginia's Review of 
Permit Applications are described below.
    4 VAC 25-130-773.15. Review of Permit Applications: Virginia seeks 
to revise subsection (a)(3) of this regulation, which addresses review 
of the information submitted under 4 VAC 25-130-778.13 and 4 VAC 25-
130-778.14 about the applicant's or operator's permit histories, 
business structure, and ownership and control relationships. The 
division must also enter permit information into AVS upon receipt and 
review of an administratively complete application.
    Additionally, in relationship to 4 VAC 25-130-773.15. Review of 
Permit Applications: Virginia seeks to revise subsection (e) to provide 
that the final compliance review of a permit application, required 
under 4 VAC 25-130-773.15(b)(1), must be conducted no more than five 
business days before permit issuance under 773.19 of this part.
    The amendment to subsection (a)(3) of 4 VAC-25-130-773.15 adds the 
requirement that all permit information that must be reviewed by the 
regulatory authority must also be entered into the AVS. The addition of 
this requirement renders the Virginia program no less effective than 
its Federal counterpart at

[[Page 56697]]

30 CFR 773.8. Therefore, we approve the amendment to subsection (a)(3).
    The addition of the requirement that the final compliance review 
take place no more than five business days before permit issuance 
renders subsection (e) of 4 VAC-25-130-773.15 no less effective than 
its Federal counterpart at 30 CFR 773.12(c). The amendment to 
subsection (e) is therefore approved.

IV. Summary and Disposition of Comments

Public Comments

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

Federal Agency Comments

    On May 9, 2016, pursuant to 30 CFR 732.17(h)(11)(i) and section 
503(b) of SMCRA, we requested comments on the amendments from various 
Federal agencies with an actual or potential interest in the Virginia 
program (Administrative Record No. 2034). No Federal agency comments 
were received.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get 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 pertains to air or water quality standards. Therefore, we did 
not ask EPA to concur on the amendment. However, on May 9, 2016, under 
30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the 
amendment. The EPA did not provide any comments.

V. OSMRE's Decision

    Based on the above findings, we are approving Virginia's amendment 
that was submitted on April 29, 2016 (Administrative Record No. VA 
2033). To implement this decision, we are amending the Federal 
regulations, at 30 CFR part 946, which codify decisions concerning the 
Virginia program. In accordance with the Administrative Procedure Act 
(5 U.S.C. 500 et seq.), this rule will take effect 30 days after the 
date of publication. Section 503(a) of SMCRA (30 U.S.C. 1253) requires 
that the State's program demonstrate that it has the capability of 
carrying out the provisions of the Act and meeting its purposes. SMCRA 
requires consistency between State and Federal standards.

VI. Statutory and Executive Order Reviews

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This rule would not effect a taking of private property or 
otherwise have taking implications that would result in public property 
being taken for government use without just compensation under the law. 
Therefore, a takings implication assessment is not required. This 
determination is based on the analysis of the corresponding Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget (OMB) will 
review all significant rules. Pursuant to OMB guidance, dated October 
12, 1993, the approval of state program amendments is exempted from OMB 
review under Executive Order 12866. Executive Order 13563, which 
reaffirms and supplements Executive Order 12866, retains this 
exemption.

Executive Order 13771--Reducing Regulation and Controlling Regulatory 
Costs

    State program amendments are not regulatory actions under Executive 
Order 13771 because they are exempt from review under Executive Order 
12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by Section 3(a) of Executive Order 12988. The Department has determined 
that this Federal Register notice meets the criteria of Section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency writes its legislation and 
regulations to minimize litigation, and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because Section 3 focuses on the quality of Federal 
legislation and regulations, the Department limited its review under 
this Executive Order to the quality of this Federal Register document 
and to changes to the Federal regulations. The review under this 
Executive Order did not extend to the language of the State regulatory 
program or to the program amendment that the Commonwealth of Virginia 
drafted.

Executive Order 13132--Federalism

    This rule is not a ``[p]olicy that [has] Federalism implications'' 
as defined by Section 1(a) of Executive Order 13132 because it does not 
have ``substantial direct effects on the States, or on the distribution 
of power and responsibilities among the various levels of government.'' 
Instead, this rule approves an amendment to the Virginia program 
submitted and drafted by that State. OSMRE reviewed the submission with 
fundamental federalism principles in mind as set forth in Section 2 and 
3 of the Executive Order and with the principles of cooperative 
federalism, as set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). 
Specifically, pursuant to Section 503(a)(1) and (7)(30 U.S.C. 
1253(a)(1) and (7)), OSMRE reviewed the program amendment to ensure 
that it is ``in accordance with'' the requirements of SMCRA and 
``consistent with'' the regulations issued by the Secretary pursuant to 
SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognitions of their right to self-
governance and tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175 and have determined that it has no substantial 
direct effects on federally recognized Tribes or on the distribution of 
power and responsibilities between the Federal government and Tribes. 
Therefore, consultation under the Department's tribal consultation 
policy is not required. The basis for this determination is that our 
decision is on the Virginia program, which does not include Tribal 
lands or regulation of activities on Tribal lands. Tribal lands are 
regulated independently under the applicable, approved Federal program.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking that is (1) considered significant 
under Executive Order 12866, and (2) likely to have a significant 
adverse effect on the

[[Page 56698]]

supply, distribution, or use of energy. Because this rule is exempt 
from review under Executive Order 12866 and is not a significant energy 
action under the definition in Executive Order 13211, a Statement of 
Energy Effects is not required.

Executive Order 13045--Protection of Children From Environmental Health 
Risks and Safety Risks

    This rule is not subject to Executive Order 13405 because this is 
not an economically significant regulatory action as defined by 
Executive Order 12866; and this action does not address environmental 
health or safety risks disproportionately affecting children.

National Environmental Policy Act

    Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 
1251(a) and 1292(d) respectively) and the U.S. Department of the 
Interior Departmental Manual, part 516, section 13.5 (A), state program 
amendments are not major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act. (42 U.S.C. 
4332(2)(C)).

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. (OMB 
Circular A-119 at p. 14). This action is not subject to the 
requirements of section 12(d) of the NTTAA because application of those 
requirements would be inconsistent with SMCRA.

Paperwork Reduction Act

    This rule does not include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to OMB under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.) is not required.

Regulatory Flexibility Act

    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 the corresponding 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 corresponding 
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 on an analysis of the 
corresponding Federal regulations, which were determined not to 
constitute a major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. This determination 
is based on an analysis of the corresponding Federal regulations, which 
were determined not to impose an unfunded mandate. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 946

    Intergovernmental relations, Surface mining, Underground mining.


    Dated: September 13, 2019
Thomas D. Shope,
Regional Director, North Atlantic--Appalachian Region.
    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.

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   Original amendment  submission date           Date of final  publication             Citation/description
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                                                  * * * * * * *
April 29, 2016..........................  October 23, 2019.......................  Amend the following sections
                                                                                    of the Virginia
                                                                                    Administrative Code: Section
                                                                                    4 VAC 25-130-773.15(a)(3).
                                                                                    Review of Permit
                                                                                    Applications, General;
                                                                                    Section 4 VAC 25-130-
                                                                                    773.15(e). Review of Permit
                                                                                    Applications, Final
                                                                                    compliance review.
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[FR Doc. 2019-22946 Filed 10-22-19; 8:45 am]
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