[Federal Register Volume 76, Number 35 (Tuesday, February 22, 2011)]
[Rules and Regulations]
[Pages 9642-9646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3907]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 901
[SATS No. AL-075-FOR; Docket No. OSM-2010-0009]
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
regulations regarding their Surface Mining Commission, who is eligible
to apply for and obtain a mining license, Hearing Officers, license
fees, and several minor editorial changes throughout the document such
as changing ``him'' to ``him or her'' and ``chairman'' to ``chair.''
Alabama revised its program to improve operational efficiency.
DATES: Effective Date: February 22, 2011.
FOR FURTHER INFORMATION CONTACT: Sherry Wilson, Director, Birmingham
Field Office. Telephone: (205) 290-7280. 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 program includes, among other things, ``a State law which provides
for the regulation of surface coal mining and reclamation operations in
accordance with the
[[Page 9643]]
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
effective 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 of the Alabama program in the
May 20, 1982, Federal Register (47 FR 22030). You can also find later
actions concerning the Alabama program and program amendments at 30 CFR
901.10, 901.15, and 901.16.
II. Submission of the Amendment
By letter dated May 12, 2010 (Administrative Record No. AL-661),
and revised on July 14, 2010 (Administrative Record No. AL-661-006),
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.
We announced receipt of the proposed amendment in the September 30,
2010, Federal Register (75 FR 60371). 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 November 1, 2010.
III. OSM's Findings
The 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. Any revisions that we
do not specifically discuss below concern nonsubstantive wording or
editorial changes.
A. Alabama Code Sec. 9-16-73
Alabama revised its code at Section 9-16-73(a) with several minor
editorial changes.
There is no Federal counterpart to this section and we find the
amendment of this paragraph does not make Alabama's program less
effective than the Federal regulations. Therefore, we are approving it.
Alabama revised its code at Section 9-16-73(b). This change adds
the requirements that members of the seven member Commission reflect
the racial, gender, geographic, urban/rural and economic diversity of
the state. This seven member board appointed by the Governor with the
advice and consent of the Alabama State Senate is, pursuant to the
approved state program, vested with the power and authority to
implement the state Title V program acting through its director and
staff. The full text of the changes is available in the Administrative
Record.
There is no Federal counterpart to this section and we find the
amendment of this paragraph does not make Alabama's program less
effective than the Federal regulations. Therefore, we are approving it.
Alabama revised its code at Section 9-16-73(c) through (f) with
several minor editorial changes.
There is no Federal counterpart to this section and we find the
amendment of these paragraphs does not make Alabama's program less
effective than the Federal regulations. Therefore, we are approving it.
Alabama revised its code at Section 9-16-73(g). This change
authorizes the Commission to meet once every month rather than once
every 30 days as previously required. The full text of the changes is
available in the Administrative Record.
There is no Federal counterpart to this section and we find the
amendment of this paragraph does not make Alabama's program less
effective than the Federal regulations. Therefore, we are approving it.
Alabama revised its code at Section 9-16-73(h) through (j) with
several minor editorial changes.
There is no Federal counterpart to this section and we find the
amendment of these paragraphs does not make Alabama's program less
effective than the Federal regulations. Therefore, we are approving it.
B. Alabama Code Sec. 9-16-74
Alabama revised its code at Section 9-16-74(1) through (3) with
several minor editorial changes.
There is no Federal counterpart to this section and we find the
amendment of these paragraphs does not make Alabama's program less
effective than the Federal regulations. Therefore, we are approving it.
Alabama revised its code at Section 9-16-74(4). This addition
allows the Commission to promulgate rules and regulations charging
reasonable fees for administration of these blasting rules,
regulations, and standards including, but not limited to, fees for
certifications, renewals, and continuing education for certified
blaster applicants. The full text of the changes is available in the
Administrative Record. There is no Federal counterpart to this section
and we find the amendment of this paragraph does not make Alabama's
program less effective than the Federal regulations. Therefore, we are
approving it.
Alabama revised its code at Section 9-16-74(5) through (22) with
several minor editorial changes.
There is no Federal counterpart to this section and we find the
amendment of these paragraphs does not make Alabama's program less
effective than the Federal regulations. Therefore, we are approving it.
C. Alabama Code Sec. 9-16-77
Alabama revised its code at Section 9-16-77(a) with several minor
editorial changes.
There is no Federal counterpart to this section and we find the
amendment of this paragraph does not make Alabama's program less
effective than the Federal regulations. Therefore, we are approving it.
Alabama revised its code at Section 9-16-77(b). This change amends
existing provisions for the hiring or contracting with Hearing Officers
to preside over administrative appeals of agency actions, continues the
existing requirements that Hearing Officers be members in good standing
with the Alabama State Bar and have no direct or indirect interests in
a surface or underground coal mine operation, and adds a prohibition
against hearing officers having been employed by or having represented
a coal mine operator within the previous 24 months. This section
corresponds to 30 CFR 705.1. The full text of the changes is available
in the Administrative Record.
We find the amendment of these paragraphs does not make Alabama's
program less effective than the Federal regulations. Therefore, we are
approving it.
D. Alabama Code Sec. 9-16-78
Alabama revised its code at Section 9-16-78(a) through (c) with
several minor editorial changes.
There is no Federal counterpart to this section and we find the
amendment of these paragraphs does not make Alabama's program less
effective than the Federal regulations. Therefore, we are approving it.
Alabama revised its code at Section 9-16-78(d). This change deletes
an existing provision of law that Hearing Officer facilities be located
in a facility apart from Commission offices. The full text of the
changes is available in the Administrative Record.
There is no Federal counterpart to this section and we find the
amendment of this paragraph does not make Alabama's program less
effective than the Federal
[[Page 9644]]
regulations. Therefore, we are approving it.
E. Alabama Code Sec. 9-16-81
Alabama revised its code at Section 9-16-81(a) with several minor
editorial changes.
There is no Federal counterpart to this section and we find the
amendment of this paragraph does not make Alabama's program less
effective than the Federal regulations. Therefore, we are approving it.
Alabama revised its code at Section 9-16-81(b). This change amends
the existing license statute to require that only citizens of the
United States or persons legally present in the United States with
appropriate documentation from the Federal government and that possess
a mining license may engage in surface coal mining operations within
Alabama. Additionally, several minor editorial changes were made. The
full text of the changes is available in the Administrative Record.
There is no Federal counterpart to this section and we find the
amendment of this paragraph does not make Alabama's program less
effective than the Federal regulations. Therefore, we are approving it.
Alabama revised its code at Section 9-16-81(c) and (d) with several
minor editorial changes.
There is no Federal counterpart to this section and we find the
amendment of these paragraphs does not make Alabama's program less
effective than the Federal regulations. Therefore, we are approving it.
Alabama revised its code at Section 9-16-81(f). This change
modifies existing law to remove a fixed $1,000 fee and allow the
Commission to establish by rule the initial fee for a mining license
and annual license update fees. Such fees must be reasonable in amount.
Additionally, several minor editorial changes were made. The full text
of the changes is available in the Administrative Record.
There is no Federal counterpart to this section and we find the
amendment of this paragraph does not make Alabama's program less
effective than the Federal regulations. Therefore, we are approving it.
F. Alabama Code Sec. 9-16-93
Alabama revised its code at Section 9-16-93(b). This change deletes
a requirement of existing law that cessation orders alleging imminent
harm or danger include a citation for an expeditious hearing before an
administrative hearing officer. The amendment conforms the Alabama
Statute to the requirements of the corresponding Federal SMCRA
provisions. The full text of the changes is available in the
Administrative Record.
We find that the changes to this section make Alabama's program no
less effective than its Federal counterparts at 30 CFR 840.13(b).
Therefore, we are approving them.
Alabama revised its code at Section 9-16-93(c) through (f) with
several minor editorial changes.
We find that the changes in Alabama's program are no less stringent
than its Federal counterparts at 30 U.S.C. 1271 (a)(2). Therefore, we
are approving them.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment and received one
concerning the proposed changes to Alabama Code Sec. 9-16-73 with
respect to the Alabama program requiring that members of the seven
member Alabama Surface Mining Commission reflect the racial, gender,
geographic, urban/rural and economic diversity of the state. The
commenter objected to using gender and race as a basis for the
selection by the Alabama governor of future members of the Commission.
That commenter asserted ``[t]here is no justification for
discrimination in this particular context.'' The commenter opined,
``the best qualified individuals should be selected, without regard to
race, ethnicity, or sex,'' and requested that the words ``racial'' and
``gender'' be deleted from the proposed change to the Alabama program..
The commenter cited three decisions by the U.S. Supreme Court
[Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995);
Mississippi University for Women v. Hogan, 458 U.S. 718 (1982);
Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979)] and
one Federal statute [Title VII of the 1964 Civil Rights Act, 42 U.S.C.
2000e et seq.] in support of his objection and request. However, the
cases relied upon by the commenter do not make it unconstitutional for
the Governor of Alabama to appoint people to the Commission who reflect
the racial, gender, geographic, urban/rural and economic diversity of
the state.
In fact, Adarand Constructors, Inc. v. Pena specifically holds,
``government is not disqualified from acting in response to the
persistence of both the practice and the lingering effects of racial
discrimination against minority groups in the United States.'' Rather
than outlawing affirmative action as the commenter suggests, the
Supreme Court requires that provisions like the one Alabama is
proposing be narrowly tailored to further compelling government
interests. The State of Alabama has decided that it has a compelling
government interest in having the Alabama Surface Mining Commission
reflect the racial, gender, geographic, urban/rural and economic
diversity of the state.
In reviewing proposed amendments to the approved Alabama regulatory
program, OSM does not second-guess the State's determinations about its
compelling government interests. OSM's task is to determine whether the
proposed regulatory changes render the Alabama program less effective
than the Federal standards established by Congress. We have determined
the proposed changes will not make the Alabama program less effective
and we are therefore approving them.
Federal Agency Comments
On July 28, 2010, 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-661.07). 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. However, on
July 28, 2010, under 30 CFR 732.17(h)(11)(i), we requested comments
from the EPA on the amendment (Administrative Record No. AL-661.07).
The 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 July 28, 2010, we requested comments on Alabama's
amendment (Administrative Record No. AL-661.07), but neither responded
to our request.
[[Page 9645]]
V. OSM's Decision
Based on the above findings, we approve the amendment Alabama sent
us on May 12, 2010 and revised on July 14, 2010.
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
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.
The basis for this determination is that our decision is on a State
regulatory program and does not involve Federal regulations 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 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.
[[Page 9646]]
Dated: December 23, 2010.
Ervin J. Barchenger,
Regional Director, Mid-Continent Region.
For the reasons set out in the preamble, 30 CFR Part 901 is amended
as set forth below:
PART 901--ALABAMA
0
1. The authority citation for Part 901 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
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:
Sec. 901.15 Approval of Alabama regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
January 5, 2010......................... February 22, 2011.......... ASMCRA sections 9-16-73; 9-16-74; 9-16-
77; 9-16-78; 9-16-81(a) through (d) and
(f); and 9-16-93(b) through (f).
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2011-3907 Filed 2-18-11; 8:45 am]
BILLING CODE 4310-05-P