[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.
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For the reasons set out in the preamble, 30 CFR part 901 is amended as
set forth below:
PART 901--ALABAMA
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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.
* * * * *
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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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