[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: <a href="/cdn-cgi/l/email-protection#d3a0a4babfa0bcbd93bca0bea1b6fdb4bca5"><span class="__cf_email__" data-cfemail="9ae9edf3f6e9f5f4daf5e9f7e8ffb4fdf5ec">[email protected]</span></a>.

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


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>