04-20663. Maryland Regulatory Program

AGENCY:

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

ACTION:

Final rule; approval of amendment.

SUMMARY:

We are approving an amendment to the Maryland regulatory program (the Maryland Program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The program amendment consists of changes to the Code of Maryland Regulations (COMAR) concerning valid existing rights (VER). The amendment is intended to revise the Maryland program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE:

September 14, 2004

FOR FURTHER INFORMATION CONTACT:

George Rieger, Telephone: [phone]. Internet: [e-mail].

SUPPLEMENTARY INFORMATION

I. Background on the Maryland Program

II. Submission of the Proposed Amendment

III. OSM's Findings

IV. Summary and Disposition of Comments

V. OSM's Decision

VI. Procedural Determinations

I. Background on the Maryland 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.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Maryland program on December 1, 1980. You can find background information on the Maryland program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 1, 1980, Federal Register (45 FR 79431). You can also find later actions concerning Maryland's program and program amendments at 30 CFR 920.12, 920.15, and 920.16.

II. Submission of the Proposed Amendment

By letter dated May 4, 2004 (Administrative Record Number MD-583-11), Maryland sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). The amendment revises COMAR provisions concerning valid existing rights.

We announced receipt of the proposed amendment in the July 19, 2004, Federal Register (69 FR 42943). 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 August 18, 2004. We received responses from one Federal Agency.

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. Any revisions we do not specifically discuss below concern nonsubstantive wording or editorial changes and are approved here without discussion.

[a] Revisions to Maryland's Rules That Are Substantively Identical to the Corresponding Provisions of the Federal Regulations

Maryland proposed revisions to the following rules containing language that is substantively identical to the corresponding sections of the Federal regulations.

State rule	Subject	Federal counterpart
26.20.10.01B.(7)(a) and (b)	Definition of Valid Existing Rights	30 CFR 761.5(a), (b)(1), (c) (Definition of Valid Existing Rights).
26.20.10.01-1	Demonstration	30 CFR 761.5(b)(2)
	Standards	(Definition of Valid Existing Rights).
26.20.10.02 and .02C	Prohibition	30 CFR 761.11, and 761.11(d)(1), (d)(2), (d)(2)(ii).
26.20.10.03A, B, C, D(2), and (H)	Determination of Limits and Prohibitions	30 CFR 761.11(d)(2)(i), 761.17(a), (b), (c) and (d)(1).
26.20.10.04	Exception for Existing Operations	30 CFR 761.12(a).
26.20.10.05A, B, B(1) through B(7), B(9), C, D, and E	Submission of Valid Existing Rights Determination	30 CFR 761.16(b), (b)(1) through (b)(4).
26.20.10.06A through C, D, D(2) through D(8), D(10), E, and F	Review of Valid Existing Rights Request	30 CFR 761.16(c) and (d).
26.20.10.07	Decision on Valid Existing Rights	30 CFR 761.16(e) and (f).

Because these 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.

[b] Revisions to Maryland's Rules That Are Not the Same as the Corresponding Provisions of the Federal Regulations

1. COMAR 26.20.10.05B(8) is amended to provide as follows:

(8) Documentation that, if the coal interests have been severed from other property interests, that the owners of other property interests in the land to which the request pertains have been notified and provided an opportunity to comment on the validity of the property rights claimed in the request within 30 days of the notice.

The counterpart Federal provision at 30 CFR 761.16(b)(1)(viii) does not provide a specific time limit for the comment period on the validity of the property rights claimed. Rather, 30 CFR 761.16(b)(1)(viii) provides for “a reasonable opportunity” for the owners of other property interests in the land to which the request pertains to comment on the validity of the property rights claims. We find that Maryland's proposed 30-day comment period is reasonable and is, therefore, no less effective than the Federal regulations at 30 CFR 761.16(b)(1)(viii) and can be approved.

2. COMAR 26.20.10.06D is amended to provide that upon receipt of the Bureau notification that the request for a VER determination is complete, the requestor shall cause a notice to appear in a newspaper of general circulation in the county in which the land is located. The notice shall contain, at D.(1), “A heading of ‘Notice of Request for Valid Existing Rights Determination.’ ” The Federal regulations at 30 CFR 761.16(d)(1) provide the requirement that a notice be published in a newspaper to inform the public of the submittal of a complete application for a VER determination and requesting public comment. The Federal regulations at 30 CFR 761.16(d)(1) also specify the minimum requirements of the notice. There is no Federal counterpart to the proposed Maryland provision at 26.20.10.06D(1). However, we find that proposed 26.20.10.06D(1) is not inconsistent with the Federal regulations at 30 CFR 761.16(d)(1) and can be approved.

3. COMAR 26.20.10.06D is amended to provide that upon receipt of the Bureau notification that the request for a VER determination is complete, the requestor shall cause a notice to appear in a newspaper of general circulation in the county in which the land is located. The notice shall contain, at D.(9), “[a] statement that interested persons may obtain a 30 day extension of the comment period upon written request to the bureau.” The counterpart Federal provision at 30 CFR 761.16(d)(1)(vii) provides that the notice shall contain a statement that interested persons may obtain a 30-day extension of the comment period upon request. The Federal provision at 30 CFR 761.16(d)(1)(vii) does not provide that such a request be in writing. However, we find that Maryland's requirement that such requests be in writing is reasonable and does not render the Maryland program less effective than the Federal regulations at 30 CFR 761.16(d)(1)(vii) and can be approved.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment (Administrative Record Number MD-583-13). There were no comments.

Federal Agency Comments

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 Maryland program (Administrative Record Number MD-583-12). We received a response from one Federal agency, which is addressed below.

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(i) and (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 Maryland proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record Number MD-583-12). By letter dated July 29, 2004, EPA stated that it had reviewed the proposed amendment and had determined that there are no apparent inconsistencies with the Clean Water Act or other statutes under the jurisdiction of the EPA and had no comments on the amendment (Administrative Record Number MD-583-14).

V. OSM's Decision

Based on the above findings, we are approving the amendment that Maryland forwarded to us on May 4, 2004.

To implement this decision, we are amending the Federal regulations at 30 CFR part 920, which codify decisions concerning the Maryland 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 Maryland's program demonstrate that it has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of Maryland and Federal standards.

VI. Procedural Determinations

Executive Order 12630—Takings

In this rule, the State is adopting valid existing rights standards that are similar to the standards in the Federal definition at 30 CFR 761.5. Therefore, this rule has the same takings implications as the Federal valid existing rights regulations. The takings implications assessment for the Federal valid existing rights rule appears in Part XXIX.E of the preamble to that rule. See 64 FR 70766, 70822-27, December 17, 1999.

Executive Order 12866—Regulatory Planning and Review

This rule is 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 a Federal regulation 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)).

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 analysis performed under various laws and executive orders for the counterpart Federal regulations.

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 analysis performed under various laws and executive orders for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 920

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: August 20, 2004.

Brent Wahlquist,

Brent Wahlquist, Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR part 920 is amended as set forth below:

PART 920—MARYLAND

1. The authority citation for part 920 continues to read as follows:

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

2. Section 920.15 is amended by adding a new entry to the table in chronological order by “Date of final publication” to read as follows:

§ 920.15

Approval of Maryland regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
May 4, 2004	September 14, 2004	COMAR 26.20.10.01B(7)(a) and (b), 01-1, 02, 02C, 03A, B, C, D(2) and H, 04, 05, 06, and 07.