[Federal Register Volume 69, Number 137 (Monday, July 19, 2004)]
[Proposed Rules]
[Pages 42943-42948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16285]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 920
[MD-054-FOR]
Maryland Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendments.
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SUMMARY: We are announcing receipt of a proposed amendment to the
Maryland regulatory 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. The amendment is intended to revise
the Maryland program to be consistent with the corresponding Federal
regulations.
DATES: We will accept written comments on this amendment until 4 p.m.
(local time), on August 18, 2004. If requested, we will hold a public
hearing on the amendment on August 13, 2004. We will accept requests to
speak at a hearing until 4 p.m. (local time), on August 3, 2004.
ADDRESSES: You should mail or hand-deliver written comments and
requests to speak at the hearing to Mr. George Rieger at the address
listed below.
You may review copies of the Maryland program, this amendment, a
listing of any scheduled public hearings, and all written comments
received in response to this document at the addresses listed below
during normal business hours, Monday through Friday, excluding
holidays. You may receive one free copy of the amendment by contacting
the Appalachian Regional Coordinating Center.
Mr. George Rieger, Chief, Pittsburgh Field Division, Office of
Surface Mining Reclamation and Enforcement, Appalachian Regional
Coordinating Center, 3 Parkway Center, Pittsburgh, PA 15220, Telephone:
(412) 937-2153. E-mail: [email protected].
Mr. C. Edmon Larrimore, Program Manager, Mining Program, 1800
Washington Boulevard, Baltimore, Maryland 21230, Telephone: (410) 537-
3557 or 1-800-633-6101.
FOR FURTHER INFORMATION CONTACT: Mr. George Rieger, Telephone: (412)
937-2153. Internet: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Maryland Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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. Description 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.
The full text of the program amendment is available to you to read
at the locations listed above under ADDRESSES. Specifically, Maryland
proposes the following amendments to COMAR.
1. COMAR 26.20.10.01.B(7) Definition of Valid Existing Rights
This definition is amended at paragraph (7)(a)(i) by deleting the
phrase ``on August 3, 1977'' and by adding in its place the words ``at
the time the land came under the protection of Environment Article,
Sec. 15-505(b)(2), Annotated Code of Maryland or Regulation .02 of the
chapter.''
Subparagraph (7)(a)(ii) is amended by several deletions and
additions of language as follows. In the first sentence, the phrase
``these lands either had'' is revised to read ``the land had.'' The
following words are added immediately following the revised phrase
``the land had:'' ``obtained all permits and other authorizations
required to conduct surface coal mining operations or had.'' Further
along in the first sentence, ``good faith efforts'' is amended to be
``good faith effort.'' Also in the first sentence, the words ``State
and federal permits'' are deleted. The words ``permits and
authorizations'' are added immediately before the words ``to conduct
the operations.'' The word ``those'' is deleted and replaced by the
word ``the.'' The words ``lands, on or before'' are revised to read
``land before.'' The date ``August 3, 1977'' is deleted, and the
following words are added in their place: ``the land came under the
protection of Environment Article, Sec. 15-505(b)(2), Annotated Code
of Maryland or Regulation .02 of this chapter and at a minimum had
submitted an application for any permit required under this subtitle.''
The word ``coal'' is being deleted following the phrase ``to the Bureau
that the'' and the word ``land'' is added in its place. The word
``both'' is deleted from the phrase ``is both needed for.'' The words
``an on-going'' are being deleted immediately following the words
``adjacent to.'' The words ``obtained before August 3, 1977'' are being
deleted at the end of the sentence, and those words are being replaced
by the following words:
And other authorizations had been obtained, or a good faith attempt
to obtain all permits and authorizations had been made before the
land came under the protection of Environment Article Sec. 15-
505(b)(2), Annotated Code of Maryland or Regulation .02 of this
chapter.
As amended, COMAR 26.20.10.01.B(7)(a)(ii) provides as follows:
(ii) The person proposing to conduct surface coal mining
operations on the land had obtained all permits and other
authorizations required to conduct surface coal mining operations or
had made a good faith effort to obtain all necessary permits and
authorizations to conduct the operations
[[Page 42944]]
on the land before the land came under the protection of Environment
Article, Sec. 15-505(b)(2), Annotated Code of Maryland or
Regulation .02 of this chapter and at a minimum had submitted an
application for any permit required under this subtitle, or can
demonstrate to the Bureau that the land is needed for and
immediately adjacent to a surface coal mining operation for which
all permits were and other authorizations had been obtained, or a
good faith attempt to obtain all permits and authorizations had been
made before the land came under the protection of Environment
Article Sec. 15-505(b)(2), Annotated Code of Maryland or Regulation
.02 of this chapter.
Subparagraph (7)(b)(i) is being amended by adding the word
``properly'' between the word ``A'' and the word ``recorded'' at the
beginning of the sentence. The word ``recorded'' immediately before the
word ``easement'' is deleted and is replaced by the word ``or.'' The
words ``or a permit,'' ``coal haul,'' and ``recorded as of August 3,
1977; or'' are deleted following the word ``easement.'' New language is
added at the end of this provision. As amended, Subparagraph (7)(b)(ii)
provides as follows:
(i) A properly recorded right-of-way or easement for a road in
that location existed when the land came under the protection of
Environment Article, Sec. 15-505(b)(2), Annotated Code of Maryland
or Regulation .02 of this chapter, and under the document creating
the right-of-way or easement, and under subsequent conveyances, the
person has a legal right to use or construct a road across the
right-of-way or easement for surface coal mining operations;
Subparagraph (7)(b)(ii) is being amended by deleting the words
``other'' and ``as of August 3, 1977,'' and adding new language. As
amended, Subparagraph (7)(b)(ii) provides as follows:
(ii) Any road in existence when the land upon which it is
located came under the protection of Environment Article, Sec. 15-
505(b)(2), Annotated Code of Maryland or Regulation .02 of this
chapter, and the person has a legal right to use the road for
surface coal mining operations;
Subparagraphs (7)(b)(iii) and (iv) are new and provide as follows:
(iii) A valid permit for use or construction of a road in that
location for surface coal mining operations existed when the land
came under the protection of Environment Article, Sec. 15-
505(b)(2), Annotated Code of Maryland or Regulation .02 of this
chapter; or
(iv) Valid existing rights exist under Section B(7)(a) of this
regulation.
2. COMAR 26.20.10.01-1 Demonstration Standards
This provision is new and provides as follows:
.01-1 Demonstration Standards
A. In order to meet the needed for and adjacent standard in
Regulation .01B(7)(a)(ii) of this regulation a person shall
demonstrate that prohibiting expansion of the surface coal mining
operation onto land under the protection of Environment Article,
Sec. 15-505(b)(2), Annotated Code of Maryland or Regulation .02 of
this chapter would unfairly impact the viability of the operation as
originally planned before the land came under the protection of
Environment Article, Sec. 15-505(b)(2), Annotated Code of Maryland
or Regulation .02 of this chapter. Except for operations in
existence before August 3, 1977, or for which a good faith effort to
obtain all necessary permits had been made before August 3, 1977,
this standard does not apply to lands already under the protection
of Environment Article, Sec. 15-505(b)(2), Annotated Code of
Maryland or Regulation .02 of this chapter when the Bureau approved
the permit for the original operation or when the good faith effort
to obtain all necessary permits for the original operation was made.
B. In evaluating whether a person meets the standard in Sec. A
of this regulation, the Bureau may consider factors such as:
(1) The extent to which the coal supply contracts or other legal
and business commitments that predate the time the land came under
the protection of Environment Article, Sec. 15-505(b)(2), Annotated
Code of Maryland or Regulation .02 of this chapter depend upon use
of that land for surface coal mining operations;
(2) The extent to which plans used to obtain financing for the
operation before the land came under the protection of Environment
Article, Sec. 15-505(b)(2), Annotated Code of Maryland or
Regulation .02 of this chapter rely upon the use of that land for
surface coal mining operations;
(3) The extent to which investments in the operation before the
land came under the protection of Environment Article, Sec. 15-
505(b)(2), Annotated Code of Maryland or Regulation .02 of this
chapter rely upon the use of that land for surface coal mining
operations; or
(4) Whether the land lies within the areas identified on the map
required under COMAR 26.20.02.10A(6) before the land came under the
protection of Regulation .02 of this chapter.
3. COMAR 26.20.10.02 Prohibition
The introductory paragraph to this provision is amended by adding
the words ``as determined under Regulation .07 of this chapter, or an
exception for existing operation under Regulation .04 of this chapter''
immediately after the words ``valid existing rights.'' In addition, the
words ``after August 3, 1977'' and ``unless those operations were being
conducted on August 3, 1977'' are deleted. As amended, the introductory
paragraph to this provision provides as follows:
Subject to valid existing rights, as determined under Regulation
.07 of this chapter, or an exception for existing operations under
Regulation .04 of this chapter, surface coal mining operations may
not be conducted on any of the following lands.
Subparagraph 26.20.10.02.C.(1) is amended by deleting the words
``join this'' and replacing those words with the words ``are located
within the.'' Also, the words ``in order to join the public road'' are
added immediately following the words ``right-of-way line.'' As
amended, Subparagraph 26.20.10.02.C.(1) provides as follows:
(1) Where mine access roads or haulage roads are located within
the right-of-way line in order to join the public road, or
Subparagraph 26.20.10.02.C.(2) is amended by adding the word
``closed'' immediately following the word ``relocated.''
4. COMAR 26.20.10.03 Determination of Limits and Prohibitions
Subparagraph 26.20.10.03.A. is amended by adding the words
``application for a'' immediately following the word ``complete.'' In
addition, the word ``application'' is deleted immediately following the
word ``permit'' and the words ``for a surface coal mining operation or
for a revision of the boundaries of a surface coal mining operation
permit'' are added in place of the deleted word. Also, the words
``review the application to'' are added immediately following the words
``the Bureau shall.'' As amended, Subparagraph 26.20.10.03.A. provides
as follows:
A. Upon receipt of a complete application for a permit for a
surface coal mining operation or for a revision of the boundaries of
a surface coal mining operation permit, the Bureau shall review the
application to determine whether the proposed surface coal mining
operations are limited or prohibited under this chapter.
Subparagraph 26.20.10.03.B. is amended by adding the words ``any
portion of'' immediately following the words ``Bureau shall reject.''
In addition, the words ``if the applicant has no valid existing rights
for the area, or if the operation did not exist on August 3, 1977'' are
deleted and replaced by new language. As amended, Subparagraph
26.20.10.03.B. provides as follows:
B. If the proposed operation is to be located on any lands where
surface coal mining is prohibited, the Bureau shall reject any
portion of the application that would locate surface coal mining
operations on land protected under Regulation .02 of this chapter
unless:
(1) The site qualifies for an exception for existing operations
under Regulation .04 of this chapter;
[[Page 42945]]
(2) The applicant has valid existing rights for the land as
determined under Regulation .07 of this chapter;
(3) The applicant obtains a waiver or exception from the
prohibitions of Regulation .02C, D, and E of this chapter in
accordance with Sec. D, E, and F of this regulation; or
(4) For land protected by Regulation .02B of this chapter, both
the Bureau and the agency with jurisdiction over the park or place
jointly approve the proposed operation in accordance with Sec. H of
this regulation.
Subparagraph 26.20.10.03.C. is amended by revising the following
regulation citations: ``.02E and F'' is changed to ``.02F and G.''
Subparagraph 26.20.10.03.D(2) is amended by adding the words ``or
close'' immediately following the words ``would relocate.'' In
addition, the words ``and provide a public comment period and
opportunity to request a public hearing'' are added at the end of this
provision. As amended, Subparagraph 26.20.10.03.D(2) provides as
follows:
(2) Shall require the applicant to specifically advertise that
the proposed surface mining operation would relocate, or close a
public road or would be conducted within 100 feet of the right-of-
way of a public road; and provide a public comment period and
opportunity to request a public hearing;
Subparagraph 26.20.10.03.H. is amended by deleting the word
``public'' immediately following the words ``adversely affect any'' and
adding in its place, the words ``publicly owned.'' In addition, the
words ``publicly owned'' are deleted immediately before the words
``places included on.''
5. COMAR 26.20.10.04 Exception for Existing Operations
This provision is new and provides as follows:
.04 Exception for Existing Operations
The prohibitions and limitations of Regulation .02 of this
chapter do not apply to surface coal mining operations for which a
permit issued by the Bureau under the Regulatory Program exists when
the land comes under the protection of Regulation .02 of this
chapter. This exception only applies to lands within the permit area
as it exists when the land comes under the protection of Regulation
.02 of this chapter.
6. COMAR 26.20.10.05 Submission of Valid Existing Rights Determination
This provision is new and provides as follows:
.05 Submission of Valid Existing Rights Determination
A. A person that intends to conduct surface coal mining
operations on the basis of valid existing rights under Regulation
.02 of this chapter shall submit a request for a valid existing
rights determination to the Bureau. This request may be submitted
before preparing and submitting an application for a permit for the
land.
B. A request for a valid existing rights determination that
relies on the good faith/all permits standard or the needed for and
adjacent standard in Regulation .01B(7)(a)(ii) of this chapter shall
provide a property rights demonstration. The demonstration shall
include:
(1) A legal description of the land to which the request
pertains;
(2) Complete documentation of the character and extent of the
requestor's current interests in the surface and mineral estates of
the land to which the request pertains;
(3) A complete chain of title for the surface and mineral
estates of the land to which the request pertains;
(4) A description of the nature and effect of each title
instrument that forms the basis of the request, including any
provision pertaining to the type or method of mining or mining-
related surface disturbances and facilities;
(5) A description of the type and extent of surface coal mining
operations that the requestor claims the right to conduct, including
the method of mining, any mining-related surface activities and
facilities and an explanation of how these operations would be
consistent with State property law;
(6) Complete documentation of the nature and ownership, as of
the date that the land came under the protection of Environment
Article, Sec. 15-505(b)(2), Annotated Code of Maryland or
Regulation .02 of this chapter, of all property rights for the
surface and mineral estates of the land to which the request
pertains;
(7) Names and addresses of the current owners of the surface and
mineral estates of the land to which the request pertains;
(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; and
(9) Any comments received in response to the notification
required by paragraph (8) of this section.
C. A request for a valid existing rights determination that
relies on the good faith/all permits standard in Regulation
.01B(7)(a)(ii) of this chapter shall contain:
(1) All of the information required by Sec. B of this
regulation;
(2) Approval and issuance dates and identification numbers for
any permits, licenses, and authorizations that were obtained before
the land came under the protection of Environment Article, Sec. 15-
505(b)(2), Annotated Code of Maryland or Regulation .02 of this
chapter;
(3) Application dates and identification numbers for any
permits, licenses, and authorizations for which applications were
submitted before the land came under the protection of Environment
Article, Sec. 15-505(b)(2), Annotated Code of Maryland or
Regulation .02 of this chapter; and
(4) An explanation of any other good faith effort made to obtain
the necessary permits, licenses, and authorizations as of the date
that the land came under the protection of Environment Article,
Sec. 15-505(b)(2), Annotated Code of Maryland or Regulation .02 of
this chapter.
D. A request for a valid existing rights determination that
relies upon the needed for and adjacent standard in Regulation
.01B(7)(a)(ii) of this chapter shall contain:
(1) All of the information required by Sec. B of this
regulation; and
(2) An explanation of how and why the land is needed for and
immediately adjacent to the operation upon which the request is
based, including the demonstration required by Regulation .01-1 of
this chapter that prohibiting expansion of the operation onto the
land would unfairly impact the viability of the operation as
originally planned before the land came under the protection of
Environment Article, Sec. 15-505(b)(2), Annotated Code of Maryland
or Regulation .02 of this chapter.
E. A request for a valid existing rights determination that
relies upon one of the standards for roads in Regulation .01B(7)(b)
of this chapter shall contain satisfactory documentation that:
(1) The road existed when the land on which it is located came
under the protection of Environment Article, Sec. 15-505(b)(2) or
Regulation .02 of this chapter and the requestor has a legal right
to use the road for surface coal mining operations;
(2) A properly recorded right of way or easement for a road in
that location existed when the land came under the protection of
Environment Article, Sec. 15-505(b)(2), Annotated Code of Maryland
or Regulation .02 of this chapter and under the document creating
the right of way or easement and under any subsequent conveyances
the requestor has a legal right to use or construct a road across
that right of way or easement to conduct surface coal mining
operations; or
(3) A valid permit for use or construction of a road in that
location for surface coal mining operations existed when the land
came under the protection of Environment Article, Sec. 15-
505(b)(2), Annotated Code of Maryland or Regulation .02 of this
chapter.
7. COMAR 26.20.10.06 Review of Valid Existing Rights Request
This provision is new and provides as follows:
.06 Review of Valid Existing Rights Request
A. Upon receipt of a request for a valid existing rights
determination, the Bureau shall complete an initial review to
determine if the request includes all applicable requirements of
Regulation .05 of this chapter. If the request does not include all
of the applicable information, the Bureau shall return the request
with notification of the missing information.
B. If the request is not returned to the Bureau within 30 days
after receipt of the notification in Sec. A of this regulation, the
Bureau shall issue a determination that valid existing rights has
not been demonstrated in accordance with Regulation .07 of this
chapter.
[[Page 42946]]
C. When the Bureau determines that a request for a valid
existing rights determination is complete, the Bureau shall:
(1) Notify the requestor, in writing, that the application is
complete and require the requestor to publish the notice required by
Sec. D of this regulation; and
(2) Provide a copy of the notice required by Sec. C(1) to:
(a) The Bureau of Mines,
(b) All reasonably locatable owners of surface and mineral
estates in the land included in the request, and
(c) The owner of the feature causing the land to come under the
protection of Regulation .02 of this chapter, and when applicable,
the agency with primary jurisdiction over the feature with respect
to the values causing the land to come under the protection of
Regulation .02 of this chapter.
D. Upon receipt of the Bureau notification that the request 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:
(1) A heading of ``Notice of Request for Valid Existing Rights
Determination';
(2) The name and address of the requestor;
(3) The location of the land to which the request pertains;
(4) A description of the type of surface coal mining operations
planned;
(5) A reference to and brief description of the applicable
standard(s) under the definition of valid existing rights in
Regulation .01B(7) of this chapter that contains the information
required by Sec. E of this regulation;
(6) A statement that the Bureau will not make a decision on the
merits of the request if, by the close of the comment period of the
notice, a person with a legal interest in the land initiates
appropriate legal action to resolve any differences concerning the
validity or interpretation of the deed, lease, easement, or other
documents that form the basis of the claim for valid existing rights
if the request relies upon one or more of the standards in
Regulation .01B(7)(a)(ii) and .01B(7)(b)(i)and (ii) of this chapter;
(7) A description of the procedures the Bureau will follow in
processing the request;
(8) The closing date of a comment period that is a minimum of 30
days after publication of the notice;
(9) A statement that interested persons may obtain a 30 day
extension of the comment period upon written request to the Bureau;
and
(10) The name and address of the Bureau office where a copy of
the request is available for public inspection and where comments
and requests for extension of the comment period may be sent.
E. The reference and description required by Sec. D(5) of this
regulation shall include a:
(1) Description of the property rights claimed and the basis for
the claim if the request relies upon the good faith/all permits
standard or the needed for and adjacent standard in Regulation
.01B(7)(a)(ii) of this regulation;
(2) Description of the basis for the claim that the road existed
when the land came under the protection of Environment Article,
Sec. 15-505(b)(2), Annotated Code of Maryland or Regulation .02 of
this chapter and that a legal right exists to use the road for
surface coal mining operations if the request relies upon the
standard in Regulation .01B(7)(b)(ii) of this chapter; or
(3) Description of the basis for the claim that a properly
recorded right of way or easement for a road in that location
existed when the land came under the protection of Environment
Article, Sec. 15-505(b)(2), Annotated Code of Maryland or
Regulation .02 of this chapter and under the document creating the
right of way or easement and under any subsequent conveyances a
legal right exists to use or construct a road across the right of
way or easement to conduct surface coal mining operations, if the
request relies upon the standard in Regulation .01B(7)(b)(i) of this
regulation.
F. The notice required by Sec. C(2) of this regulation shall
provide a 30 day comment period starting from the date of service
and specify that an additional 30 days is available upon written
request. The Bureau may grant additional time for good cause upon
request and may not necessarily consider comments received after the
closing date of the comment period.
8. COMAR 26.20.10.07 Decision on Valid Existing Rights
This provision is new and provides as follows:
.07 Decision on Valid Existing Rights
A. The Bureau shall review the information submitted under
Regulation .05 of this chapter, the comments received under
Regulation .06 of this chapter, and any other reasonably available
information to determine whether the record is sufficiently complete
and adequate to support a decision on the merits of the request for
valid existing rights. The Bureau shall notify the applicant, in
writing, if it determines the record is inadequate providing an
explanation of the inadequacy and requesting the submittal of
additional information that is necessary to complete the record. The
request shall require the requested information to be submitted
within 30 days from receipt of the request.
B. When the record is complete and adequate, the Bureau shall
determine whether the request submitted under Regulation .05 of this
chapter has demonstrated valid existing rights. The Bureau's
decision shall be in writing and contain findings of fact and
conclusions sufficient to justify the decision.
C. The Bureau shall issue a determination that valid existing
rights has not been demonstrated if the property rights claims are
the subject of pending litigation in a court or administrative body
with jurisdiction over the property rights in question. The
determination shall be made without prejudice. The request may be
refilled when the property rights dispute is finally adjudicated.
The section only applies to legal action that is initiated as of the
closing date of the comment period under Regulation .06D and F of
this chapter.
D. If the record of the request indicates disagreement as to the
accuracy of the property rights claims, but is not the subject of
any pending litigation, the Bureau shall evaluate the merits of the
information in the record and determine whether a demonstration of
valid existing rights has been made. The Bureau shall issue a
decision in accordance with Sec. B of this regulation.
E. The Bureau shall issue a determination that valid existing
rights have not been demonstrated if any of the information
requested under Sec. A of this regulation is not submitted within
30 days from receipt of the request. This determination is made
without prejudice and a revised request may be refiled at any time.
F. After making a determination under this regulation, the
Bureau shall:
(1) Require the person requesting the determination to publish
notice in a newspaper of general circulation in the county in which
the land is located and provide a copy of the published notice to
the Bureau; and
(2) Provide a copy of the determination and an explanation of
appeal rights to:
(a) The person requesting the determination;
(b) The owner or owners of the land to which the determination
applies;
(c) The owners of the feature causing the land to come under the
protection of Regulation .01B(7) of this chapter; and
(d) When applicable, to the agency with primary jurisdiction
over the feature with respect to the values that caused the land to
come under the protection of Regulation .01B(7) of this chapter.
G. A determination by the Bureau on valid existing rights is
subject to administrative and judicial review under COMAR 26.20.06.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the Maryland program.
Written Comments
Send your written or electronic comments to OSM at the address
given above. Your written comments should be specific, pertain only to
the issues proposed in this rulemaking, and include explanations in
support of your recommendations. We may not consider or respond to your
comments when developing the final rule if they are received after the
close of the comment period (see DATES). We will make every attempt to
log all comments into the administrative record, but comments delivered
to an address other than the Appalachian Regional Coordinating Center
may not be logged in.
Electronic Comments
Please submit Internet comments as an ASCII, Word file avoiding the
use of special characters and any form of encryption. Please also
include ``Attn:
[[Page 42947]]
SATS NO. MD-054-FOR'' and your name and return address in your Internet
message. If you do not receive a confirmation that we have received
your Internet message, contact the Appalachian Regional Coordinating
Center at (412) 937-2153.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If individual respondents
request confidentiality, we will honor their request to the extent
allowable by law. Individual respondents who wish to withhold their
name or address from public review, except for the city or town, must
state this prominently at the beginning of their comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on
August 3, 2004. If you are disabled and need special accommodations to
attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an opportunity to speak, we will not hold a hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at the public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
will be open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the Administrative Record.
IV. 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. 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 in 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
[[Page 42948]]
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: May 27, 2004.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 04-16285 Filed 7-16-04; 8:45 am]
BILLING CODE 4310-05-P