Mississippi Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 924

[SPATS No. MS-014-FOR]

Mississippi Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Mississippi

regulatory program (hereinafter referred to as the ``Mississippi

program'') under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). The amendment consists of revisions to the Mississippi Surface

Coal Mining and Reclamation Law pertaining to the small operator

assistance program, variances from performance standards, enforcement,

and administrative and judicial review proceedings. The amendment is

intended to revise the Mississippi program to be consistent with SMCRA.

EFFECTIVE DATE: June 25, 1998.

FOR FURTHER INFORMATION CONTACT:

Arthur W. Abbs, Director, Birmingham Field Office, Office of Surface

Mining Reclamation and Enforcement, 135 Gemini Circle, Suite 215,

Homeward, Alabama 35209, Telephone: (205) 290-7282.

SUPPLEMENTARY INFORMATION:

I. Background on the Mississippi Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Mississippi Program

On September 4, 1980, the Secretary of the Interior conditionally

approved the Mississippi program. Background information on the

Mississippi program, including the Secretary's findings, the

disposition of comments, and the conditions of approval can be found in

the September 4, 1980, Federal Register (45 FR 58520). Subsequent

actions concerning the conditions of approval amendments can be found

at 30 CFR 924.10, 924.16, and 924.17.

II. Submission of the Proposed Amendment

By letter dated March 26, 1998 (Administrative Record No. MS-0354),

Mississippi submitted an amendment to its program pursuant to SMCRA.

Mississippi proposed to amend the Mississippi Surface Coal Mining and

Reclamation Law (MSCMRL) in response to the required amendments

codified at 30 CFR 924.16(b), (c), and (d).

OSM announced receipt of the proposed amendment in the April 14,

1998, Federal Register (63 FR 18172), and in the same document opened

the public comment period and provided an opportunity for a public

hearing or meeting on the adequacy of the proposed amendment. The

public comment period closed on May 14, 1998. Because no one requested

a public hearing or meeting, none was held.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

amendment.

1. Sec. 53-9-26, Small Operator Assistance Program

Mississippi proposed to change the word ``operation'' to the word

``operator'' in the phrase ``at all locations of surface coal mining

operation.''

The Director finds that the revision satisfies the requirement

placed on the Mississippi program at 30 CFR 924.16(b)(1) on January 9,

1998 (63 FR 1342), and that Mississippi's revised provision at section

53-9-26 is no less stringent than section 507(c) of SMCRA. Therefore,

the Director is approving the revision and removing the required

amendment.

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2. Sec. 53-9-45, Variances From Performance Standard

At section 53-9-45(4)(b), Mississippi proposed to remove the

reference to subsection (2) from the phrase ``a variance from the

requirement to restore to approximate original contour set forth in

subsection (2) or (3) of this section.''

The Director finds that the revision satisfies the requirement

placed on the Mississippi program at 30 CFR 924.16(b)(2) on January 9,

1998 (63 FR 1342), and that Mississippi's revised provision at section

53-9-45 is no less stringent than section 515(e)(2) of SMCRA.

Therefore, the Director is approving the revision and removing the

required amendment.

3. Sec. 53.9-69, Enforcement and Administrative and Judicial Review

Proceedings

a. At section 53-9-69(1)(c)(i), Mississippi proposed to change the

word ``may'' to the word ``shall'' in the phrase ``the commission,

executive director or the executive director's authorized

representative may issue an order to the permittee or agent of the

permittee.''

The Director finds that the revision satisfies the requirement

placed on the Mississippi program at 30 CFR 924.16(c) on January 9,

1998 (63 FR 1342), and that Mississippi's revised provision at section

53-9-69(1)(c)(i) is no less stringent than section 521(a)(3) of SMCRA.

Therefore, the Director is approving the revision and removing the

required amendment.

b. Mississippi proposed to add the following new provision at

section 53-9-69(4):

When an order is issued under this section, or as a result of

any administrative proceeding under this chapter, at the request of

any person, a sum equal to the aggregate amount of all costs and

expenses, including attorney's fees, as determined by the commission

to have been reasonably incurred by that person for or in

conjunction with that person's participation in the proceedings,

including any judicial review of agency actions, may be assessed

against either party as the court, resulting from judicial review,

or the commission, resulting from administrative proceedings deems

proper.

The Director finds that the addition of this new provision

satisfies the requirement placed on the Mississippi program at 30 CFR

924.16(d)(1) on January 9, 1998 (63 FR 1342), and that Mississippi's

provision at section 53-9-69(4) is no less stringent than section

525(e) of SMCRA. Therefore, the Director is approving the new provision

and removing the required amendment.

4. Sec. 53-9-77, Formal Hearings

Mississippi proposed to add the following new provision at section

53-9-77(5):

Except as provided in Section 53-9-67, the availability of

judicial review under this section shall not limit any rights

established under Section 53-9-67.

The Director finds that the addition of this new statutory

provision satisfies the requirement placed on the Mississippi program

at 30 CFR 924.16(d)(2) on January 9, 1998 (63 FR 1342), and that

Mississippi's provision at section 53-9-77(5) is no less stringent than

the counterpart Federal provision at section 526(e) of SMCRA.

Therefore, the Director is approving the new provision and removing the

required amendment.

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comments on the proposed amendment, but none

were received.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Mississippi program

(Administrative Record No. MS-0357). On April 29, 1998, the U.S. Army

Corps of Engineers commented that a review of the proposed amendment

found it to be satisfactory (Administrative Record No. MS-0363).

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated 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 Mississippi proposed to make in this

amendment pertain to air or water quality standards. Therefore, OSM did

not request the EPA's concurrence.

Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from the EPA (Administrative Record No. MS-0357).

The EPA did not respond to OSM's request.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit

comments on proposed amendments which may have an effect on historic

properties from the SHPO and ACHP. OSM solicited comments on the

proposed amendment from the SHPO and ACHP (Administrative Record No.

MS-0357). Neither the SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Mississippi on March 26, 1998.

The Federal regulations at 30 CFR Part 924, codifying decisions

concerning the Mississippi program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, 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 since each such

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 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.

National Environmental Policy Act

No environmental impact statement is required for this rule since

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 section 102(2)(C)

of the National

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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 has determined 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

corresponding 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. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. 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 corresponding Federal regulations.

Unfunded Mandates

OSM has determined and certifies pursuant to the Unfunded Mandates

Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a

cost of $100 million or more in any given year on local, state, or

tribal governments or private entities.

List of Subjects in 30 CFR Part 924

Intergovernmental relations, Surface mining, Underground mining.

Dated: June 6, 1998.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 924 is amended

as set forth below:

PART 924--MISSISSIPPI

1. The authority citation for Part 924 continues to read as

follows:

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

2. Section 924.15 is amended in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 924.15 Approval of Mississippi regulatory program amendments.

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Original amendment submission date Date of final publication Citation/description

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March 26, 1998........................ June 25, 1998................ MSCMRL 53-9-26; 45(4)(b); 69(1)(c)(i) and (4); 77(5).

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Sec. 924.16 [Amended]

3. Section 924.16 is amended by removing and reserving paragraphs

(b), (c), and (d).

[FR Doc. 98-16813 Filed 6-24-98; 8:45 am]

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