Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations 65779

§ 931.16 [Amended]

3. Section 931.16 is amended by

removing and reserving paragraphs m,

n, and z.

[FR Doc. 00–28195 Filed 11–1–00; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 946

[VA–118–FOR]

Virginia Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: OSM is approving an

amendment to the Virginia permanent

regulatory program (hereinafter referred

to as the Virginia program) under the

Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The

amendment consists of changes to the

Virginia Surface Mining Reclamation

Regulations concerning subsidence

control. The amendment is intended to

revise the Virginia program to be

consistent with the corresponding

Federal regulations.

EFFECTIVE DATE: November 2, 2000.

FOR FURTHER INFORMATION CONTACT: Mr.

Robert A. Penn, Director, Big Stone Gap

Field Office, Office of Surface Mining

Reclamation and Enforcement, 1941

Neeley Road, Suite 201, Compartment

116, Big Stone Gap, Virginia 24219,

Telephone: (540) 523–4303.

SUPPLEMENTARY INFORMATION:

I. Background on the Virginia Program.

II. Submission of the Amendment.

III. Director’s Findings.

IV. Summary and Disposition of

Comments.

V. Director’s Decision.

VI. Procedural Determinations.

I. Background on the Virginia Program

On December 15, 1981, the Secretary

of the Interior conditionally approved

the Virginia program. You can find

background information on the Virginia

program, including the Secretary’s

findings, the disposition of comments,

and the conditions of approval in the

December 15, 1981, Federal Register (46

FR 61085–61115). You can find later

actions on conditions of approval and

program amendments at 30 CFR 946.11,

946.12, 946.13, 946.15, and 946.16.

II. Submission of the Amendment

By letter dated June 27, 2000

(Administrative Record Number VA–

999) the Virginia Department of Mines,

Minerals and Energy (DMME) submitted

an amendment to the Virginia program.

In its letter, the DMME stated that on

December 22, 1999, OSM suspended

and modified portions of 30 CFR 784.20

and 30 CFR 817.121 pursuant to an

order of the United States Appeals Court

for the District of Columbia. The DMME

further stated that the corresponding

sections of the Virginia Surface Mining

Reclamation Regulations also contain

the same language the court found

inappropriate and which OSM

consequently removed from the Federal

rules. The DMME stated that it proposes

to amend its rules to be consistent with

and in the same manner that OSM

modified the Federal regulations. We

announced receipt of the proposed

amendment in the July 14, 2000,

Federal Register (65 FR 43723), invited

public comment, and provided an

opportunity for a public hearing on the

adequacy of the proposed amendment.

The comment period closed on August

14, 2000. No one requested to speak at

a public hearing, so no hearing was

held.

Procedural History of Suspended

Federal Rules

The Energy Policy Act was enacted

October 24, 1992, Pub. L. 102–486, 106

Stat. 2776 (1992) (hereinafter, The

Energy Policy Act or EPAct). Section

2504 of that Act, 106 Stat. 2776, 3104,

amends SMCRA, 30 U.S.C. 1201 et seq.

Section 2504 of EPAct added a new

section 720 to SMCRA. Section 720(a)(1)

requires that all underground coal

mining operations conducted after

October 24, 1992, promptly repair or

compensate for material damage to noncommercial buildings and occupied

residential dwellings and related

structures as a result of subsidence due

to underground coal mining operations.

Repair of damage includes

rehabilitation, restoration, or

replacement of the structures identified

by section 720(a)(1), and compensation

must be provided to the owners in the

full amount of the diminution in value

resulting from the subsidence. Section

720(a)(2) requires prompt replacement

of certain identified water supplies

which have been adversely affected by

underground coal mining operations.

Under section 720(b), the Secretary of

the Interior was required to promulgate

final regulations to implement the

provisions of section 720(a).

On September 24, 1993 (58 FR 50174),

OSM published a proposed rule to

amend the regulations applicable to

underground coal mining and control of

subsidence-caused damage to lands and

structures through the adoption of a

number of permitting requirements and

performance standards. We adopted

final regulations on March 31, 1995 (60

FR 16722).

The rules were challenged by the

National Mining Association in the

District Court for the District of

Columbia and in the U.S. Court of

Appeals for the District of Columbia

Circuit. On April 27, 1999, the U.S.

Court of Appeals issued a decision

vacating certain portions of the

regulatory provisions of the subsidence

regulations. See National Mining

Association v. Babbitt, 173 F.3d 906

(1999). We suspended those regulatory

provisions that are inconsistent with the

rationale provided in the U.S. Court of

Appeals’ decision. The following

Federal provisions were suspended.

1. 30 CFR 817.121(c)(4)(i)–(iv)

This regulation provided that if

damage to any non-commercial building

or occupied residential dwelling or

structures related thereto occurred as a

result of earth movement within an area

determined by projecting a specific

angle of draw from the outer-most

boundary of any underground mine

workings to the surface of the land, a

rebuttable presumption would exist that

the permittee caused the damage. The

presumption typically would have

applied to a 30-degree angle of draw.

Once the presumption was triggered, the

burden of going forward shifted to the

mine operator to offer evidence that the

damage was attributable to another

cause. The purpose of this regulatory

provision was to set out a procedure

under which damage occurring within a

specific area would be subject to a

rebuttable presumption that subsidence

from underground mining was the cause

of any surface damage to noncommercial buildings or occupied

residential dwellings and related

structures.

The Court of Appeals vacated, in its

entirety, this rule that established an

angle of draw and that created a

rebuttable presumption that damage to

EPAct protected structures within an

area defined by an ‘‘angle of draw’’ was

in fact caused by the underground

mining operation. 173 F.3d at 913.

In reviewing the regulation, the Court

rejected the Secretary’s contention that

the angle of draw concept was

reasonably based on technical and

scientific assessments and that it

logically connected the surface area that

could be damaged from earth movement

to the underground mining operation.

65780 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations

The angle of draw provided the basis for

establishing the surface area within

which the rebuttable presumption

would apply. The Secretary had

explained that the rebuttable

presumption merely shifted the burden

of document production to the operator

in evaluating whether the damage was

actually caused by the underground

mining operation within the surface

area defined by the angle of draw. The

Court nevertheless held that the angle of

draw was irrationally broad and that the

scientific facts presented did not

support the logical inference that

damage to the surface area would be

caused by earth movement from

underground mining within the area.

Based on the conclusion that there

was no scientific or technical basis

provided for establishing a rational

connection between the angle of draw

and surface area damage, the Court

further concluded that the rebuttable

presumption failed. In reviewing the

rebuttable presumption requirement, the

Court held ‘‘an evidentiary presumption

is ‘only permissible if there is sound

and rational connection between the

proved and inferred facts, and when

proof of one fact renders the existence

of another fact so probable that it is

sensible and timesaving to assume the

truth of [the inferred] fact * * * until

the adversary disproves it.’ ;’’ That is to

say, for the presumption to be

permissible, the facts would have to

demonstrate that the earth movement

from the underground mining operation

‘‘more likely than not’’ caused the

damage at the surface. See National

Mining Association, 173 F.3d at 906–

910. In compliance with the Court of

Appeals’ decision of April 27, 1999, we

suspended 30 CFR 817.121(c)(4)(i)

through (iv).

Paragraph (v) within this section

applies generally to the types of

information that must be considered in

determining the cause of damage to an

EPAct protected structure and is not

limited to or expanded by the area

defined by the angle of draw. Therefore,

paragraph (v) remains in force.

2. Section 784.20(a)(3)

This regulatory provision required,

unless the applicant was denied access

for such purposes by the owner, a

survey which identified certain features.

First, the survey had to identify the

condition of all non-commercial

buildings or occupied residential

dwellings and related structures which

were within the area encompassed by

the applicable angle of draw and which

might sustain material damage, or

whose reasonably foreseeable use might

be diminished, as a result of mine

subsidence. Second, the survey had to

identify the quantity and quality of all

drinking, domestic, and residential

water supplies within the proposed

permit area and adjacent area that could

be contaminated, diminished, or

interrupted by subsidence. In addition,

the applicant was required to notify the

owner in writing that denial of access

would remove the rebuttable

presumption that subsidence from the

operation caused any postmining

damage to protected structures that

occurred within the surface area that

corresponded to the angle of draw for

the operation. (See discussion of angle

of draw above). This regulatory

provision was challenged insofar as it

required a specific structural condition

survey of all EPAct protected structures.

The Court of Appeals vacated the

specific structural condition survey

regulatory requirement in its decision

on April 27, 1999. In reviewing the

Secretary’s requirement, the Court

clearly upheld the Secretary’s authority

to require a pre-subsidence structural

condition survey of all EPAct protected

structures. The Court accepted the

Secretary’s explanation that this specific

structural condition survey was

necessary, among other requirements, in

order to determine whether a

subsidence control plan would be

required for the mining operation.

However, because of the Court’s ruling

on the ‘‘angle of draw’’ regulation

discussed above, it vacated the

requirement for a specific structural

condition survey because it was tied

directly to the area defined by the

‘‘angle of draw.’’

In compliance with the Court of

Appeals’’ decision, we suspended that

portion of 30 CFR 784.20(a)(3) which

required a specific structural condition

survey of all EPAct protected structures.

The remainder of this section continues

in force to the extent that it applies to

the EPAct protected water supplies

survey and any technical assessments or

engineering evaluations necessarily

related thereto.

III. Director’s Findings

Following, according to SMCRA and

the Federal regulations at 30 CFR 732.15

and 732.17, are our findings concerning

Virginia’s amendment.

4 VAC 25–130–784.20. Subsidence

Control Plan

Subsection 4 VAC 25–130–

784.20(a)(3) is amended by adding the

following language at the end of

subdivision (3).

However, the requirements to perform a

survey of the condition of all noncommercial

buildings or occupied residential dwellings

and structures related thereto, that may be

materially damaged or for which the

reasonably foreseeable use may be

diminished by subsidence, within the areas

encompassed by the applicable angle of draw

is suspended consistent with the Secretary’s

suspension of the corresponding federal rule.

As stated above, the Federal

regulation at 30 CFR 784.20(a)(3), which

required the performance of a survey of

the condition of all noncommercial

buildings or occupied residential

dwellings and structures related thereto,

that may be materially damaged or for

which the reasonably foreseeable use

may be diminished by subsidence,

within the areas encompassed by the

applicable angle of draw is suspended.

In the proposed amendment, Virginia

has suspended the State counterpart to

the suspended Federal regulation. Since

the language of 4 VAC 25–130–

784.20(a)(3) and the added sentence

suspending a portion of the regulation

are substantively identical to the

amended Federal regulation, we find

these changes to the provisions at 4

VAC 25–130–784.20(a)(3) which

required a specific structural condition

survey of all EPAct protected structures,

are consistent with the suspension of

the Federal regulation discussed above,

and do not render the Virginia program

regulations less effective than the

Federal regulations. Therefore, we are

approving this amendment.

4 VAC 25–130–817.121. Subsidence

Control

Section 4 VAC 25–130–817.121(c)(4),

is revised by deleting the title

‘‘Rebuttable presumption of causation

by subsidence,’’ and by deleting

paragraphs (c)(4)(i) through (iv). New

language is added which states that

‘‘Section (4)(i) through (iv) are

suspended consistent with the

Secretary’s suspension of the

corresponding Federal rule.’’ The

paragraph designation ‘‘(v)’’ is deleted.

As amended, section 4 VAC 25–130–

817.121(c)(4) provides the following.

(4) Section [sic] (4)(i) through (iv) are

suspended consistent with the Secretary’s

suspension of the corresponding federal rule.

Information to be considered in

determination of causation. In determination

whether damage to protected structures was

caused by subsidence from underground

mining, all relevant and reasonably available

information will be considered by the

division.

As discussed above, Federal

regulations concerning the rebuttable

presumption at 30 CFR 817.121(c)(4)(i)

through (iv) have been suspended. Since

the regulations at 4 VAC 25–130–

817.121(c)(4)(i) through (iv) were

previously approved by OSM as the

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations 65781

State counterparts to the suspended

Federal regulations, we find that the

suspension and deletion by Virginia to

be consistent with the suspension of the

Federal regulations and do not render

the Virginia program regulations less

effective than the Federal regulations.

Therefore, we are approving the

amendments.

IV. Summary and Disposition of

Comments.

Federal Agency Comments

According to 30 CFR 732.17(h)(11)(i),

we solicited comments on the proposed

amendment from various Federal

agencies with an actual or potential

interest in the Virginia program. The

U.S. Department of Labor, Mine Safety

and Health Administration (MSHA)

responded and stated that there appears

to be no conflict with the MSHA

regulations or policy. The U.S. Fish and

Wildlife Service (USFWS) responded

and stated that it foresees no effects

from the proposed amendment on the

USFWS trust resources, including

endangered and threatened species. The

U.S. Department of Agriculture, Natural

Resources Conservation Service (NRCS)

responded and stated its concurrence

with the amendments.

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

any provisions of the State 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 rule suspensions Virginia

proposed pertain to air or water quality

standards. Nevertheless, we requested

EPA’s comments on the proposed

amendment.

The EPA responded by letter dated

July 11, 2000 (Administrative Record

Number VA–1002) and stated that it has

no objections to the amendments since

they are not contrary to the clean Water

Act or other statutes or regulations

implemented by the EPA. The EPA also

provided the following general

comments. The EPA stated that

Virginia’s requirements for subsidence

control plans and pre-subsidence

surveys primarily relate to minimizing

damage to surface structures and

drinking water supplies, as required by

SMCRA. The EPA recommended that,

where there is a potential for subsidence

problems associated with water loss in

streams, that stream flow and aquatic

life monitoring of streams in the path of

any longwall mining operation also be

included in pre-subsidence surveys. The

EPA also recommended that measures

to minimize or prevent subsidence

cracks in the stream beds be

implemented to the extent feasible,

including the avoidance of mining

under the streams and the detecting and

sealing of stream cracks after

subsidence.

These comments are outside the scope

of this amendment.

Public Comments

We solicited public comments on the

amendment. One commenter responded

and expressed support for the

amendments and stated that OSM

should approve them. In response, and

for the reasons discussed above in the

findings, we are approving the

amendments.

V. Director’s Decision

Based on the above findings, we

approve the Virginia amendment as

submitted by Virginia on June 27, 2000.

To implement this decision, we are

amending the Federal regulations at 30

CFR Part 946 which codifies decisions

concerning the Virginia program. We are

making this final rule effective

immediately to expedite the State

program amendment process.

VI. Procedural Determinations

Executive Order 12866—Regulatory

Planning and Review

This rule is exempted from review by

the Office of Management and Budget

under Executive Order 12866.

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 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 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, 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

Section 702(d) of SMCRA (30 U.S.C.

1292(d)) provides that a decision on a

proposed state regulatory program

provision does not constitute a major

federal action within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (NEPA) (42

U.S.C. 4332(2)(C)). A determination has

been made that such decisions are

categorically excluded from the NEPA

process (516 DM 8.4.A).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by the Office of

Management and Budget 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 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.

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

65782 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations

data and assumptions for the

counterpart federal regulation.

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.

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 a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 946

Intergovernmental relations, Surface

mining, Underground mining.

Dated: October 19, 2000.

George C. Miller,

Acting Regional Director, Appalachian

Regional Coordinating Center.

For the reasons set out in the

preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal

Regulations is amended as set forth

below:

PART 946—VIRGINIA

1. The authority citation for Part 946

continues to read as follows:

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

2. Section 946.15 is amended by

adding a new entry to the table in

chronological order by ‘‘Date of

publication of final rule’’ to read as

follows:

§ 946.15 Approval of Virginia regulatory

program amendments.

* * * * *

Original amendment

submission date

Date of publication of final

rule Citation/description

*******

June 27, 2000 ................ November 2, 2000 ............. 4 VAC 25–130–784.20(a)(3) amended and suspended in part; 817.121(c)(4)(i) through

(iv) suspended and deleted.

[FR Doc. 00–28194 Filed 11–1–00; 8:45 am]

BILLING CODE 4310–05–P

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[COTP SAVANNAH–00–098]

RIN 2115–AA97

Safety Zone Regulations: Savannah,

GA

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule.

SUMMARY: The Coast Guard is

establishing a temporary safety zone

starting at the Southern Natural Gas

dock at Elba Island (N32.05.48,

W080.59.48) and extending outward in

a 100 yard radius into the Savannah

River. This safety zone is necessary to

protect boaters from the hazards

associated with the compromised

structural integrity of the Southern

Natural Gas dock at Elba Island.

EFFECTIVE DATES: This regulation

becomes effective at 8:50 p.m. on

September 21, 2000 and will remain in

effect until 11:30 p.m. on November 15,

2000.

FOR FURTHER INFORMATION CONTACT:

LTJG Peter Simonds, Coast Guard

Marine Safety Office Savannah, at (912)

652–4353.

SUPPLEMENTARY INFORMATION:

Regulatory Information

We did not publish a notice of

proposed rulemaking (NPRM) for this

regulation. Under 5 U.S.C. 553(b)(B), the

Coast Guard finds that good cause exists

for not publishing an NPRM. Publishing

a NPRM would be contrary to the public

interest since immediate action is

needed to protect boaters from hazards

associated with the compromised

structural integrity of the Southern

Natural Gas dock at Elba Island. The

Coast Guard received notice of this

compromised structural integrity of the

facility on September 21, 2000 and the

safety zone becomes effective on

September 21, 2000.

Under 5 U.S.C. 553(d)(3), the Coast

Guard finds that good cause exists for

making this rule effective less than 30

days after publication in the Federal

Register. Delaying its effective date

would be contrary to the public interest

since immediate action is needed to

protect boaters from hazards associated

with the compromised structural

integrity of the Southern Natural Gas

dock at Elba Island. The Coast Guard

received notice of compromised

structural integrity of the Southern

Natural Gas dock at Elba Island on

September 21, 2000 and the safety zone

becomes effective on September 21,

2000.

Background and Purpose

This regulation is necessary to protect

boaters from the hazards associated with

Compromised structural integrity of the

Southern Natural Gas dock at Elba

Island. All vessels are prohibited from

anchoring or transiting restricted waters

and channels unless specifically

authorized by the Captain of the Port

Savannah, GA. This regulation does not

apply to authorized law enforcement or

search and rescue vessels operating

within the safety zone. The Captain of

the Port Savannah, GA will issue a

Marine Safety Information Broadcast

Notice to Mariners (BNTM) to notify the

marine community of the safety zone

and the imposed restrictions.

Regulatory Evaluation

This rule is not a ‘‘significant

regulatory action’’ under section 3(f) of

Executive Order 12866 and does not

require an assessment of potential costs

and benefits under section 6(a)(3) of that

order. The Office of Management and

Budget has not reviewed it under that

order. It is not ‘‘significant’’ under the

regulatory policies and procedures of

the Department of Transportation (DOT)

(44 FR 11040, February 26, 1979). This

rule will only be in effect in a limited

area.