03-8806. Alabama Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

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). Alabama proposed revisions to its rules concerning forms and license applications. Alabama revised its program to improve operational efficiency.

EFFECTIVE DATE:

April 10, 2003.

FOR FURTHER INFORMATION CONTACT:

Arthur W. Abbs, Director, Birmingham Field Office. Telephone: [phone]. Internet address: [e-mail].

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 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 October 17, 2002 (Administrative Record No. AL-0654), Alabama sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). Alabama sent the amendment at its own initiative. Alabama proposed to revise the following provisions of the Alabama Surface Mining Commission (ASMC) rules: 880-X-1B, forms and 880-X-6A-.06, license application requirements.

We announced receipt of the proposed amendment in the January 16, 2003, Federal Register (68 FR 2263). 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. The public comment period closed on February 18, 2003. Because no one requested a public hearing or meeting, we did not hold one. 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 as described below.

A. ASMC 880-X-1B Forms.

ASMC 880-X-1B lists the forms used in the operations and organization of the Alabama Surface Mining Commission. Alabama proposed to revise its list of forms by deleting some of the existing forms that are no longer used, revising the titles of other existing forms to clarify their use, and adding some new forms.

1. Alabama deleted the following forms:

Form ASMC-3 Request for Inspection & Bond Release.

Form ASMC-17 Permit Application for Underground Mining.

Form ASMC-98 Application for Coal Exploration Permit to Remove More Than 250 Tons of Coal or Disturb More Than One-Half Acre.

Form ASMC-137 Permit Application for Coal Processing Plants.

Alabama uses other existing forms in place of the deleted forms.

2. Alabama changed the existing descriptions of Forms ASMC-6, ASMC-16, ASMC-176, and ASMC-232 to the descriptions shown below:

Form ASMC-6 Application for Coal Mining License/Application for Annual Update of Coal Mining License/Notification of Change in Ownership or Control.

Form ASMC-16 Permit Application for a Surface Coal Mine/Permit Application for an Underground Coal Mine/Permit Application for a Preparation Facility.

Form ASMC-176 Renewal Application for a Surface Coal Mine/Renewal Application for an Underground Coal Mine/Renewal Application for a Preparation Facility.

Form ASMC-232 Transfer Application for a Surface Coal Mine/Transfer Application for an Underground Coal Mine/Transfer Application for a Preparation Facility.

Alabama revised the descriptions of the above forms to clarify their current use.

3. Alabama added the following new forms to its list:

Form ASMC 254 Notice of the Filing of a Renewal Application for Surface Coal Mining Permit (To Agencies).

Form ASMC 255 Notice of the Filing of a Revision Application for Surface Coal Mining Permit (To Agencies).

Form ASMC 256 Notice of the Filing of a Revision Application for Surface Coal Mining Operations (Landowner Notice).

Form ASMC 257 Notice of the Filing of a Renewal Application for Surface Coal Mining Operations (Landowner Notice).

Form ASMC 258 Statement as to Negotiability of Certificate of Deposit and Assignment (Subsidence Impacts).

Form ASMC 259 Surety Bond (Subsidence).

There is no direct Federal regulation counterpart to Alabama's rule at ASMC 880-X-1B. However, we find that the revised list of forms used in the operations and organization of the Alabama Surface Mining Commission is not inconsistent with the requirements of the Federal regulations or SMCRA. Therefore, we are approving the revisions to ASMC 880-X-1B.

B. ASMC 880-X-6A-.06 License Application Requirements

Alabama's rule at ASMC 880-X-6A-.06(g)2 requires an applicant to submit information that demonstrates sufficient financial responsibility to reasonably assure the Alabama Surface Mining Commission of the applicant's financial ability to meet the requirements of the Alabama program. Alabama is proposing to revise one of the information provisions at ASMC 880-X-6A-.06(g)2(ii)(I). This revised provision will allow public accountants to certify and sign current statements of the net worth of applicants applying for licenses to conduct surface coal mining operations. Currently, Alabama only allows certified public accountants to certify and sign these statements. The revised provision reads as follows:

A current statement in letter form, certified by a certified public accountant or public accountant licensed to do business in the State of Alabama that the applicant has a net worth of not less than $100,000. The statement must not be ambiguous, qualified, or otherwise vague. It must state the Alabama certificate or registration number of, and be signed by the certified public accountant or public accountant.

There is no direct Federal regulation counterpart to Alabama's rule at ASMC 880-X-6A-.06(g)2(ii)(I). However, we find that the revised provision is not inconsistent with the Federal regulation at 30 CFR 778.11, which requires a permit applicant to submit various kinds of applicant, operator, and ownership and control information. Therefore, we are approving the revision to ASMC 880-X-6A-.06(g)2(ii)(I).

Public Comments

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

Federal Agency Comments

On October 25, 2002, 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-0655). 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 October 25, 2002, under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record No. AL-0655). 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 October 25, 2002, we requested comments on Alabama's amendment (Administrative Record No. AL-0655), but neither responded to our request.

V. OSM's Decision

Based on the above findings, we approve the amendment Alabama sent us on October 17, 2002.

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. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630—Takings

The revisions made at the initiative of the State have been reviewed and a determination made that they do not have takings implications. This determination is based on the fact that the deletions, revisions, and additions by the Alabama Surface Mining Commission to the forms listed in ASMC 880-X-1B are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry. The same is true for the revisions to ASMC 880-X-6A-.06.

Executive Order 12866—Regulatory Planning and Review

This rule is exempted 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. 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.). This determination is based on the fact that the deletions, revisions, and additions by the Alabama Surface Mining Commission to the forms listed in ASMC 880-X-1B are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry. The same is true for the revisions to ASMC 880-X-6A-.06.

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 governmental 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 the fact that the deletions, revisions, and additions by the Alabama Surface Mining Commission to the forms listed in ASMC 880-X-1B are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry. The same is true for the revisions to ASMC 880-X-6A-.06.

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 on the fact that the deletions, revisions, and additions by the Alabama Surface Mining Commission to the forms listed in ASMC 880-X-1B are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry. The same is true for the revisions to ASMC 880-X-6A-.06.

List of Subjects in 30 CFR Part 901

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: February 26, 2003.

Charles E. Sandberg,

Acting Regional Director, Mid-Continent Regional Coordinating Center.

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

PART 901—ALABAMA

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

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

2. Section 901.15 is amended in the table by adding a new entry in chronological order by “Date of final publication” to read as follows:

§ 901.15

Approval of Alabama regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
October 17, 2002	April 10, 2003	ASMC 880-X-1B; 880-X-6A-.06(g)2(ii)(I).