[Federal Register Volume 66, Number 161 (Monday, August 20, 2001)]
[Rules and Regulations]
[Pages 43480-43483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20903]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 946
[VA-119-FOR]
Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule.
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SUMMARY: OSM is approving, with two exceptions, 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 program amendment consists of changes to the
Virginia Surface Mining Reclamation Regulations concerning letters of
credit. The amendment is intended to revise the Virginia program to be
consistent with the corresponding Federal regulations.
EFFECTIVE DATE: August 20, 2001.
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
Section 503(a) of SMCRA 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 SMCRA. 30 U.S.C. 1253(a)(1) and (7). On the basis of these
criteria, the Secretary of the Interior conditionally approved the
Virginia program on December 15, 1981. You can find background
information on the Virginia program, including the Secretary's
findings, the disposition of comments, and the conditions of
[[Page 43481]]
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 September 22, 2000 (Administrative Record Number
VA-1008) the Virginia Department of Mines, Minerals and Energy (DMME)
submitted an amendment to the Virginia program. In its letter, the DMME
stated that the program amendment changes the Virginia program rules at
4 VAC 25-130-700.5 and 4 VAC 25-130-800.21 in response to amendments
required by OSM in the May 3, 1999, Federal Register (64 FR 23542).
On May 3, 1999, OSM approved an amendment to the Virginia program
which amended the Virginia Coal Surface Mining Control and Reclamation
Act by adding ``letter of credit'' as an acceptable form of collateral
bond to satisfy the performance bonding requirements of the Virginia
Act. In our approval of the Virginia amendment, we required that the
Virginia program regulations be revised to be no less effective than
the Federal regulations at 30 CFR 800.5(b), and 30 CFR 800.21(b)(2)
concerning letters of credit. We codified this requirement at 30 CFR
946.16(a). The amendment submitted by Virginia is intended to satisfy
this required amendment.
We announced receipt of the proposed rulemaking in the October 4,
2000, Federal Register (65 FR 59152), invited public comment, and
provided an opportunity for a public hearing on the adequacy of the
proposed amendment. The public comment period closed on November 3,
2000. We received three comment letters from Federal agencies. No one
requested to speak at a public hearing, so no hearing 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
proposed amendments to the Virginia program. Only the substantive
changes submitted by Virginia will be discussed below.
4 VAC 25-130-700.5. Definitions
The definition of ``Collateral bond'' is amended by adding a new
paragraph (d) to read as follows.
(d) An irrevocable letter of credit of any bank organized or
authorized to transact business in the United States, payable only
to the Department at sight prepared in accordance with the Uniform
Customs and Practices for Documentary Credits (1993 revision or the
UCP revision current at the time of issuance of the letter of
credit) International Chamber of Commerce (Publication No. 500).
This new language is substantively identical to the Federal
definition of ``Collateral bond'' at 30 CFR 800.5(b)(4), with two
exceptions. Virginia uses the phrase ``at sight'' while the Federal
rule says ``upon presentation.'' Ballentine's Law Dictionary, 3d ed.,
defines ``at sight'' to mean ``on presentment; on being shown the
instrument.'' Therefore, Virginia's use of the phrase ``at sight'' is
no less effective than 30 CFR 800.5(b)(4). The new State language also
requires that irrevocable letters of credit be prepared in accordance
with the Uniform Customs and Practices for Documentary Credits (1993
revision or the UCP revision current at the time of issuance of the
letter of credit) International Chamber of Commerce (Publication No.
500). The Uniform Customs and Practices for Documentary Credits was
created by the International Chamber of Commerce and is used in the
United States as well as many other countries. The UCP defines the
liabilities and responsibilities of banks, the relationship of letters
of credits with other documents as well as various other provisions. We
find that the incorporation by reference to the 1993 UCP is not
inconsistent with the Federal regulations at 30 CFR 800.5(b)(4) and can
be approved. However we are not approving the phrase, ``or the UCP
revision current at the time of issuance of the letter of credit.'' We
are not approving this language because we cannot approve future
revisions without reviewing the revisions and understanding their
effects on the Virginia program and whether they would render the
Virginia program less effective.
4 VAC 25-130-800.21. Collateral bonds
This provision is amended by revising paragraph (a) by adding the
phrase ``except for letters of credit'' in the introductory sentence,
adding a new paragraph (c), and re-lettering existing paragraph (c) as
paragraph (d).
As amended, 4 VAC 25-130-800.21(a) reads as follows.
(a) Collateral bonds, except for letters of credit, shall be
subject to the following conditions: The division shall * * *
The counterpart Federal regulations at 30 CFR 800.21(a), concerning
collateral bonds, contains this same phrase. We find that the words
``except for letters of credit'' have the same effect in the Virginia
program as they do in the counterpart Federal regulations. We find,
therefore, that the State amendment does not render the Virginia
program less effective than the Federal regulations at 30 CFR 800.21(a)
and can be approved.
VAC 25-130-800.21(c) and (d)
These provisions have been amended to read as follows.
(c) Letters of credit shall be subject to the following
conditions:
(1) The letter may be issued only by a bank organized or
authorized to do business in the United States and must conform to
the Uniform Customs and Practice for Documentary Credits (1993
Revision or revision current at the time of issuance of the letter
of credit) International Chamber of Commerce (Publication No. 500);
(2) Letters of credit shall be irrevocable during their terms. A
letter of credit used as security in areas requiring continuous bond
coverage shall be forfeited and shall be collected by the division
if not replaced by other suitable bond or letter of credit at least
30 days before its expiration date; and
(3) The letter of credit shall be payable to the Department at
sight, in part or in full, upon receipt from the division of a
notice of forfeiture issued in accordance with 4 VAC 25-130-800.50.
(d) Persons with an interest in collateral posted as a bond, and
who desire notification of actions pursuant to the bond, shall
request the notification in writing to the division at the time
collateral is offered.
We find that the new language at 4 VAC 25-130-800.21(c) is
substantively identical to the counterpart Federal regulations at 30
CFR 800.21(b) concerning collateral bonds, letters of credit, with the
following two exceptions. Virginia uses the phrase ``at sight'' while
the Federal rule says ``upon demand.'' Virginia's Commercial Code at
Sec. 3-108, states that an instrument payable on demand include those
payable at sight or on demand. Therefore, Virginia's use of the phrase
``at sight'' is no less effective than the Federal rules. The new State
language at 4 VAC 25-130-800.21(c)(1) also provides that letters of
credit must conform to the Uniform Customs and Practice for Documentary
Credits (1993 Revision or revision current at the time of issuance of
the letter of credit) International Chamber of Commerce (Publication
No. 500). As previously stated, the UCP defines the liabilities and
responsibilities of banks, the relationship of letters of credits with
other documents as well as various other provisions. We find that the
incorporation by reference to the 1993 UCP is not inconsistent with the
Federal regulations at 30 CFR 800.21(b)(1) and can be approved. However
we are not approving the phrase, ``or revision current at the time of
issuance of the
[[Page 43482]]
letter of credit.'' We are not approving this language because we
cannot approve future revisions without reviewing the revisions and
understanding their effects on the Virginia program and whether they
would render the Virginia program less effective.
In addition to our partial approval of the Virginia amendments, we
find that the approved provisions fully address the requirements of the
required amendment codified at 30 CFR 946.16(a), which can, therefore,
be removed.
IV. Summary and Disposition of Comments
Federal Agency Comments
On October 10, 2000, we asked for comments from various Federal
agencies which may have an interest in the Virginia amendment
(Administrative Record Number VA-1009). We solicited comments in
accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of
the Federal regulations. Two comment letters were received. The U.S.
Department of Labor, Mine Safety and Health Administration (MSHA)
responded and stated that the Virginia amendment does not impact, nor
conflict with any law, policy or regulation enforced by MSHA. The U.S.
Department of Agriculture, Natural Resources Conservation Service
responded and concurred with the amendments.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(i) and (ii), OSM is required to
solicit comments and 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 amendments submitted by Virginia pertain to air or
water quality standards. By letter dated October 10, 2000, we requested
EPA's comments on the proposed amendment (Administrative Record Number
VA-1009).
The EPA responded by letter dated April 11, 2001 (Administrative
Record Number VA-1012), and stated that the amendment does not conflict
with the Clean Water Act. The EPA provided no other comments.
Public Comments
We solicited public comments on the amendment. We did not receive
any public comments.
V. Director's Decision
Based on the findings above, we are approving the amendments to the
Virginia program, except as noted below. We are not approving the
words, ``or the UCP revision current at the time of issuance of the
letter of credit,'' in the definition of ``Collateral bond,'' paragraph
(d), at 4 VAC 25-130-700.5; and, we are not approving the words, ``or
revision current at the time of issuance of the letter of credit,'' at
4 VAC 25-130-800.21(c)(1). In addition, we are removing the required
amendment codified at 30 CFR 946.16(a), which has been satisfied by
this amendment.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 946 which codifies decisions concerning the Virginia
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 demonstrates that the State has the
capability of carrying out the provisions of SMCRA and meeting its
purposes. Making this regulation effective immediately will expedite
that 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.
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. Since 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
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
[[Page 43483]]
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 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 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 30, 2001.
Allen D. Klein,
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 946.12 is amended by revising the section heading and
adding new paragraph (c) to read as follows:
Sec. 946.12 State program provisions and amendments not approved.
* * * * *
(c)(1) We are not approving the words, ``or the UCP revision
current at the time of issuance of the letter of credit,'' in the
definition of ``Collateral bond,'' paragraph (d), at 4 VAC 25-130-
700.5; and
(2) We are not approving the words, ``or revision current at the
time of issuance of the letter of credit'' at 4 VAC 25-130-
800.21(c)(1).
3. Section 946.15 is amended by adding a new entry to the table in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 946.15 Approval of Virginia regulatory program amendments.
* * * * *
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Original amendment submission date Date of final publication Citation/description
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* * * * * *
*
September 22, 2000................. [Insert date of publication 4 VAC 25-130-700.5 (partial approval);
in the Federal Register]. 800.21(a), (c)(1) (partial approval), (2) and
(3), and (d).
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Sec. 946.16 [Removed]
4. Section 946.16 is removed.
[FR Doc. 01-20903 Filed 8-17-01; 8:45 am]
BILLING CODE 4310-05-P