[Federal Register Volume 66, Number 206 (Wednesday, October 24, 2001)]
[Proposed Rules]
[Pages 53749-53754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26770]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-093-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is announcing receipt of a proposed amendment to the West Virginia
surface mining regulatory program (the West Virginia program) under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act).
The program amendment consists of changes to the Code of West Virginia
(W. Va. Code) as contained in Enrolled Senate Bill 5003. The amendment
provides for the creation of a special reclamation fund advisory
council, and additional revenues for the West Virginia special
reclamation fund by increasing the special reclamation tax. The
amendment is intended to improve the effectiveness of the West Virginia
program and to revise the program to be consistent with SMCRA and the
Federal regulations.
This document gives the times and locations that the West Virginia
program and proposed amendment are available for your inspection, the
comment period during which you may submit written comments on the
amendment, and the procedures that we will follow for the public
hearing, if one is requested.
DATES: We will accept written comments until 4:30 p.m. (local time), on
November 23, 2001. If requested, we will hold a public hearing or
meeting on the amendment on November 19, 2001. We will accept requests
to speak at the hearing until 4:30 p.m. (local time), on November 8,
2001.
ADDRESSES: You may mail or hand-deliver written comments and requests
to speak at the hearing to Mr. Roger W. Calhoun, Director, Charleston
Field Office at the address listed below.
You may review copies of the West Virginia program, the amendment,
a listing of any scheduled public hearings, and all written comments
received in response to this document at the addresses below during
normal business hours, Monday through Friday, excluding holidays. You
may receive one free copy of the amendment by contacting OSM's
Charleston Field Office.
Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of
Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East,
Charleston, West Virginia 25301, Telephone: (304) 347-7158. E-mail:
[email protected].
West Virginia Department of Environmental Protection, 10 McJunkin Road,
Nitro, West Virginia 25143, Telephone: (304) 759-0510. The proposed
amendment will be posted at the Department's Internet page: http://www.dep.state.wv.us.
In addition, you may review copies of the amendment during regular
business hours at the following locations:
Office of Surface Mining Reclamation and Enforcement, Morgantown Area
Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West
Virginia 26507, Telephone: (304) 291-4004. (By Appointment Only)
Office of Surface Mining Reclamation and Enforcement, Beckley Area
Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801,
Telephone: (304) 255-5265.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston
[[Page 53750]]
Field Office; Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Description of the Amendment
III. Public Comment Procedures
IV. Procedural Determinations
I. Background on the West Virginia 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 requirements of the Act * * * and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the 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 West Virginia program on January 21, 1981.
You can find background information on the West Virginia program,
including the Secretary's findings, the disposition of comments, and
conditions of approval of the West Virginia program in the January 21,
1981, Federal Register (46 FR 5915-5956). You can also find later
actions concerning West Virginia's program and program amendments at 30
CFR 948.10, 948.12, 948.13, 948.15, and 948.16.
II. Description of the Proposed Amendment
By letter dated September 17, 2001 (Administrative Record Number
WV-1237), the West Virginia Department of Environmental Protection
(WVDEP) notified OSM of proposed legislation that was approved during a
special session of the West Virginia Legislature. By letter dated
September 24, 2001 (Administrative Record Number WV-1238), the WVDEP
sent us a proposed amendment to its program under SMCRA (30 U.S.C. 1201
et seq.). The amendment was submitted in response to OSM's 30 CFR part
733 notification of June 29, 2001 (Administrative Record Number WV-
1218). It is also intended to improve the effectiveness of the West
Virginia program and to address required program amendments at 30 CFR
948.16(jjj), (kkk), and (lll).
While the proposed program amendment consists of Enrolled Senate
Bill 5003, which was signed by the Governor on October 4, 2001, we are
making available for public review and comment Engrossed Senate Bill
5003. Engrossed Senate Bill 5003 is identical to Enrolled Senate Bill
5003 except that the former clearly shows, via underline and
strikethrough, all the statutory language that has been added or
deleted from the W.Va. Code as a result of Senate Bill 5003.
The program amendment adds new W. Va. Code section 22-1-17
concerning the establishment of the special reclamation fund advisory
council. The amendment also revises the provisions of W. Va. Code
sections 22-3-11 concerning the special reclamation tax, and section
22-3-12 concerning site-specific bonding. You will find the full
amended language of West Virginia's program amendment quoted below.
1. W. Va. Code 22-1-17 Special Reclamation Fund Advisory Council
This provision is new, and provides for the creation of a special
reclamation fund advisory council. The new language is quoted below.
Article 1. Division of Environmental Protection
22-1-17. Special reclamation fund advisory council.
(a) There is hereby created within the department of
environmental protection a special reclamation fund advisory
council. The council's purpose is to ensure the effective, efficient
and financially stable operation of the special reclamation fund.
The special reclamation advisory council shall consist of eight
members, including the secretary of the department of environmental
protection, or his or her designee, the treasurer of the state of
West Virginia, or his or her designee, the director of the national
mine land reclamation center at West Virginia university and five
members to be appointed by the governor with the advice and consent
of the Senate.
(b) Each appointed member of the council shall be selected based
on his or her ability to serve on the council and effectuate its
purposes. The governor shall appoint, from a list of three names
submitted by the major trade association representing the coal
industry regulated under article three of this chapter, a member to
represent the interests of the industry. The governor shall appoint,
from a list of three names submitted by organizations advocating
environmental protection, one member to represent the interest of
environmental protection organizations. The governor shall appoint,
from a list of four names submitted by the coal mining industry and
the organizations advocating environmental protection, one member
who, by training and profession, is an actuary or an economist. The
governor shall appoint, from a list of three names submitted by the
united mine workers of America, one member to represent the interest
of coal miners. The governor shall appoint a member to represent the
interests of the general public.
(c) The terms of all members shall begin on the first day of
July, two thousand two. The secretary shall be an ex officio,
nonvoting member and serve as chairperson of the council. The terms
of the governor's appointees shall be for six years. Appointees may
be reappointed to serve on the council. The terms of the appointed
members first taking office are to be expired as designated by the
governor at the time of the nomination, two at the end of the second
year, two at the end of the forth year and one at the end of the
sixth year. As the original appointments expire, each subsequent
appointment will be for a full six-year term. Any appointed member
whose term has expired shall serve until a successor has been duly
appointed and qualified. Any person appointed to fill a vacancy is
to serve only for the unexpired term.
(d) Appointed members of the council shall be paid the same
compensation and expense reimbursement as is provided for members of
the Legislature pursuant to sections six and eight, article two-a,
chapter four of this code. Council members who are state employees
or officials shall be reimbursed for expenses in accordance with the
applicable agency's policy.
(e) The council shall meet at the call of the chairperson or his
or her designee, but not less than once every six months. The
secretary shall provide funds for necessary administrative and
technical services for the council from the special reclamation
fund.
(f) The council shall, at a minimum:
(1) Study the effectiveness, efficiency and financial stability
of the special reclamation fund with an emphasis on development of a
financial process that ensures long-term stability of the special
reclamation program;
(2) Identify and define problems associated with the special
reclamation fund, including, but not limited to, the enforcement of
federal and state law, regulation and rules pertaining to
contemporaneous reclamation;
(3) Evaluate bond forfeiture collection, reclamation efforts at
bond forfeiture sites and compliance with approved reclamation plans
as well as any modifications;
(4) Provide a forum for a full and fair discussion of issues
relating to the special reclamation fund;
(5) Contract with a qualified actuary who shall make a
determination as to the special reclamation fund's fiscal soundness.
This determination shall be completed on the thirty-first day of
December, two thousand four, and every four years thereafter. The
review is to include an evaluation of the present and prospective
assets and liabilities of the special reclamation fund; and
(6) Study and recommend to the Legislature alternative
approaches to the current funding scheme of the special reclamation
fund, considering revisions which will assure future proper
reclamation of all mine sites and continued financial viability of
the state's coal industry.
(g) On or before the first day of January, two thousand three,
and every year thereafter, the council shall submit to the
Legislature and the governor a report on the adequacy of the special
reclamation tax and the fiscal condition of the special reclamation
fund. The report shall, at a minimum, contain:
(1) A recommendation as to whether or not any adjustments to the
special reclamation
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tax should be made considering the cost, timeliness and adequacy of
bond forfeiture reclamation, including water treatment;
(2) A discussion of the council's required study issues as set
forth in subsection (f) of this section; and
(3) The availability of federal abandoned mine lands funds for
West Virginia reclamation projects.
2. W. Va. Code 22-3-11 Bonds
Subsection 22-3-11(a) is amended to provide that the penal amount
of the bond shall be not less than one thousand dollars nor more than
five thousand dollars for each acre or fraction thereof. The existing
requirement that the minimum amount of bond furnished for any type of
reclamation bonding is ten thousand dollars is relocated within this
subsection.
Subsection 22-3-11(g) is amended by adding a reference to section
22-1-17. As amended, the moneys accrued in the special reclamation fund
are reserved only for the purposes set forth in sections 22-3-11 and
22-1-17. Language is added which provides that moneys in the special
reclamation fund may be spent to reclaim abandoned lands where the
amount of bond posted and forfeited is less less than the actual cost
of reclamation, ``and where the land is not eligible for abandoned mine
land reclamation funds under article two of this chapter.'' Language is
deleted that limits expenditures from the special reclamation fund for
the purpose of designing, constructing and maintaining water treatment
systems when they are required for a complete reclamation of the
affected lands to 25 percent of the fees collected. This revision is
intended to satisfy the required amendment at 30 CFR 948.16(jjj). As
amended, the provision provides that the secretary may use the special
reclamation fund for the purpose of designing, constructing and
maintaining water treatment systems where they are required for a
complete reclamation of the affected lands. Also, the words ``articles
two and four of this chapter'' are deleted from the sentence which
identifies the administrative provisions for which up to 10 percent of
the special reclamation funds may be spent.
Subsection 22-3-11(h) is amended by adding language that provides
for a new per-ton special reclamation tax on surface coal mining
operations .
Subsections 22-3-11(i) and (j) are amended by adding references to
the special reclamation tax.
Subsection 22-3-11(k) is amended by adding a reference to the
special ``reclamation'' tax and by deleting the last sentence which
provided that the special reclamation tax ``shall be collected whenever
the liabilities of the state established in this subsection exceed the
accrued amount in the fund.'' This revision is intended to satisfy the
required amendment at 30 CFR 948.16 (kkk).
New subsection 22-3-11(n) is added to provide that the amendments
to section 22-3-11 will become effective upon the approval by OSM.
The amended section 22-3-11 is quoted below.
Article 3. Surface Coal Mining and Reclamation Act
22-3-11. Bonds; amount and method of bonding; bonding
requirements; special reclamation tax and fund; prohibited acts;
period of bond liability.
(a) After a surface mining permit application has been approved
pursuant to this article, but before a permit has been issued, each
operator shall furnish a penal bond, on a form to be prescribed and
furnished by the secretary, payable to the state of West Virginia
and conditioned upon the operator faithfully performing all of the
requirements of this article and of the permit. The penal amount of
the bond shall be not less than one thousand dollars nor more than
five thousand dollars for each acre or fraction thereof: Provided,
That the minimum amount of bond furnished for any type of
reclamation bonding shall be ten thousand dollars. The bond shall
cover: (1) The entire permit area; or (2) that increment of land
within the permit area upon which the operator will initiate and
conduct surface mining and reclamation operations within the initial
term of the permit. If the operator chooses to use incremental
bonding, as succeeding increments of surface mining and reclamation
operations are to be initiated and conducted within the permit area,
the operator shall file with the secretary an additional bond or
bonds to cover the increments in accordance with this section:
Provided, however, That once the operator has chosen to proceed with
bonding either the entire permit area or with incremental bonding,
the operator shall continue bonding in that manner for the term of
the permit.
(b) The period of liability for bond coverage begins with
issuance of a permit and continues for the full term of the permit
plus any additional period necessary to achieve compliance with the
requirements in the reclamation plan of the permit.
(c) (1) The form of the bond shall be approved by the secretary
and may include, at the option of the operator, surety bonding,
collateral bonding (including cash and securities), establishment of
an escrow account, self-bonding or a combination of these methods.
If collateral bonding is used, the operator may elect to deposit
cash or collateral securities or certificates as follows: Bonds of
the United States or its possessions, of the federal land bank or of
the homeowners' loan corporation; full faith and credit general
obligation bonds of the state of West Virginia, or other states, and
of any county, district or municipality of the state of West
Virginia or other states; or certificates of deposit in a bank in
this state, which certificates shall be in favor of the department.
The cash deposit or market value of such securities or certificates
shall be equal to or greater than the penal sum of the bond. The
secretary shall, upon receipt of any deposit of cash, securities or
certificates, promptly place the same with the treasurer of the
state of West Virginia whose duty it is to receive and hold the same
in the name of the state in trust for the purpose for which the
deposit is made when the permit is issued. The operator making the
deposit is entitled, from time to time, to receive from the state
treasurer, upon the written approval of the secretary, the whole or
any portion of any cash, securities or certificates so deposited,
upon depositing with him or her in lieu thereof, cash or other
securities or certificates of the classes herein specified having
value equal to or greater than the sum of the bond.
(2) The secretary may approve an alternative bonding system if
it will: (1) Reasonably assure that sufficient funds will be
available to complete the reclamation, restoration and abatement
provisions for all permit areas which may be in default at any time;
and (2) provide a substantial economic incentive for the permittee
to comply with all reclamation provisions.
(d) The secretary may accept the bond of the applicant itself
without separate surety when the applicant demonstrates to the
satisfaction of the secretary the existence of a suitable agent to
receive service of process and a history of financial solvency and
continuous operation sufficient for authorization to self-insure.
(e) It is unlawful for the owner of surface or mineral rights to
interfere with the present operator in the discharge of the
operator's obligations to the state for the reclamation of lands
disturbed by the operator.
(f) All bond releases shall be accomplished in accordance with
the provisions of section twenty-three of this article.
(g) The special reclamation fund previously created is
continued. The moneys accrued in the fund, including interest, are
reserved solely and exclusively for the purposes set forth in this
section and section seventeen, article one of this chapter. The fund
shall be administered by the secretary who is authorized to expend
the moneys in the fund for the reclamation and rehabilitation of
lands which were subjected to permitted surface mining operations
and abandoned after the third day of August, one thousand nine
hundred seventy-seven, where the amount of the bond posted and
forfeited on the land is less than the actual cost of reclamation,
and where the land is not eligible for abandoned mine land
reclamation funds under article two of this chapter. The secretary
shall develop a long-range planning process for selection and
prioritization of sites to be reclaimed so as to avoid inordinate
short-term obligations of the assets in the fund of such magnitude
that the solvency of the fund is jeopardized. The secretary may use
the special reclamation fund for the purpose of designing,
constructing and maintaining water treatment systems when they are
required for a complete reclamation
[[Page 53752]]
of the affected lands described in this subsection. The secretary
may also expend an amount not to exceed ten percent of the total
annual assets in the fund to implement and administer the provisions
of this article and, as they apply to the surface mine board,
articles one and four, chapter twenty-two-b of this code.
(h) Prior to the first day of January, two thousand two, every
person conducting coal surface mining operations shall contribute
into the fund a sum equal to three cents per ton of clean coal
mined. For tax periods commencing on and after the first day of
January, two thousand two, every person conducting coal surface
mining shall contribute into the fund as follows: (1) For a period
not to exceed thirty-nine months, seven cents per ton of clean coal
mined; and (2) an additional seven cents per ton of clean coal
mined. The tax shall be levied upon each ton of clean coal severed
or clean coal obtained from refuse pile and slurry pond recovery or
clean coal from other mining methods extracting a combination of
coal and waste material as part of a fuel supply on or after the
first day of January, two thousand two. The additional seven-cent
tax shall be reviewed and, if necessary, adjusted annually by the
Legislature upon recommendation of the council pursuant to the
provisions of section seventeen, article one of this chapter:
Provided, That the tax may not be reduced until the special
reclamation fund has sufficient moneys to meet the reclamation
responsibilities of the state established in this section.
(i) This special reclamation tax shall be collected by the state
tax commissioner in the same manner, at the same time and upon the
same tonnage as the minimum severance tax imposed by article twelve-
b, chapter eleven of this code is collected: Provided, That under no
circumstance shall the special reclamation tax be construed to be an
increase in either the minimum severance tax imposed by said article
or the severance tax imposed by article thirteen of said chapter.
(j) Every person liable for payment of the special reclamation
tax shall pay the amount due without notice or demand for payment.
(k) The tax commissioner shall provide to the secretary a
quarterly listing of all persons known to be delinquent in payment
of the special reclamation tax. The secretary may take the
delinquencies into account in making determinations on the issuance,
renewal or revision of any permit.
(l) The tax commissioner shall deposit the fees collected with
the treasurer of the state of West Virginia to the credit of the
special reclamation fund. The moneys in the fund shall be placed by
the treasurer in an interest-bearing account with the interest being
returned to the fund on an annual basis.
(m) At the beginning of each quarter, the secretary shall advise
the state tax commissioner and the governor of the assets, excluding
payments, expenditures and liabilities, in the fund.
(n) To the extent that this section modifies any powers, duties,
functions and responsibilities of the department that may require
approval of one or more federal agencies or officials in order to
avoid disruption of the federal-state relationship involved in the
implementation of the federal Surface Mining Control and Reclamation
Act, 30 U.S.C. 1270 by the state, the modifications will become
effective upon the approval of the modifications by the appropriate
federal agency or official.
3. Section 22-3-12 Site-Specific Bonding
Subsection 22-3-12(b) is deleted in its entirety, and the remaining
subsections relettered.
Various clarifying word changes have been made to subsections 22-3-
12(b) through (d) (formerly (c) through (e)).
Subsection 22-3-12(f) has been deleted in its entirety.
The amended section 22-3-12 is quoted below.
22-3-12. Site-specific bonding; legislative rule; contents of
legislative rule; legislative intent.
(a) Notwithstanding the provisions of section eleven of this
article, the secretary may establish and implement a site-specific
bonding system in accordance with the provisions of this section.
(b) A legislative rule proposed or promulgated pursuant to this
section must provide, at a minimum, for the following:
(1) The penal amount of a bond shall be not less than one
thousand dollars nor more than five thousand dollars per acre or
fraction thereof.
(2) Every bond, subject to the limitations of subdivision (1) of
this subsection, shall reflect the relative potential cost of
reclamation associated with the activities proposed to be permitted,
which would not otherwise be reflected by bonds calculated by merely
applying a specific dollar amount per acre for the permit.
(3) Every bond, subject to the provisions of subdivision (1) of
this subsection, shall also reflect an analysis under the
legislative rule of various factors, as applicable, which affect the
cost of reclamation, including, but not limited to: (A) The general
category of mining, whether surface or underground; (B) mining
techniques and methods proposed to be utilized; (C) support
facilities, fixtures, improvements and equipment; (D) topography and
geology; and (E) the potential for degrading or improving water
quality.
(c) A legislative rule proposed or promulgated pursuant to the
provisions of this section may, in addition to the requirements of
subsection (b) of this section, provide for a consideration of other
factors determined to be relevant by the secretary. For example, the
rule may provide for the following:
(1) A consideration as to whether the bond relates to a new
permit application, a renewal of an existing permit, an application
for an incidental boundary revision or the reactivation of an
inactive permit;
(2) A consideration of factors which may result in environmental
enhancement, as in a case where remining may improve water quality
or reduce or eliminate existing highwalls, or a permitted operation
may create or improve wetlands; or
(3) An analysis of various factors related to the specific
permit applicant, including, but not limited to: (A) The prior
mining experience of the applicant with the activities sought to be
permitted; and (B) the history of the applicant as it relates to
prior compliance with statutory and regulatory requirements designed
to protect, maintain or enhance the environment in this or any other
state.
(d) It is the intent of the Legislature that a legislative rule
proposed or promulgated pursuant to the provisions of this section
shall be constructed so that when the findings of fact by the
division [Sic] of environmental protection with respect to the
proposed mining activity and the particular permit applicant
coincide with the particular factors or criteria to be considered
and analyzed under the rule, the rule will direct a conclusion as to
the amount of the bond to be required, subject to rebuttal and
refutation of the findings by the applicant. To the extent
practicable, the rule shall limit subjectivity and discretion by the
secretary and the division [Sic] in fixing the amount of the bond.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments, on whether the proposed amendment satisfies the applicable
program approval criteria of 30 CFR 732.15. If we approve the
amendment, it will become part of the West Virginia program.
Written Comments
Send your written or electronic comments to OSM at the address
given above. Your written comments should be specific, pertain only to
the issues proposed in this rulemaking, and include explanations in
support of your recommendation(s). In the final rulemaking, we will not
necessarily consider or include in the administrative record any
comments received after the time indicated under DATES or at locations
other than the Charleston Field Office.
Electronic Comments
Please submit Internet comments as an ASCII file avoiding the use
of special characters and any form of encryption. Please also include
``Attn: SPATS NO. WV-093-FOR'' and your name and return address in your
Internet message. If you do not receive a confirmation that we have
received your Internet message, contact the Charleston Field office at
(304) 347-7158.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during our normal business
hours. We will not consider anonymous comments. If individual
respondents request confidentiality, we will honor their request to the
extent allowable by law.
[[Page 53753]]
Individual respondents who wish to withhold their name or address from
public review, except for the city or town, must state this prominently
at the beginning of their comment We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4:30 p.m. (local time),
on November 8, 2001. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an opportunity to speak, we will not hold the hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at a public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
If you are disabled and need special accommodation to attend a
public hearing, contact the person listed under FOR FURTHER INFORMATION
CONTACT.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
are open to the public and, if possible, we will post notices of the
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the Administrative Record.
IV. 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
regulations.
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, to the
extent allowable 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 because 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 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. Section 503(a)(7) requires
that State programs contain rules and regulations ``consistent with''
regulations issued by the Secretary pursuant to SMCRA.
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 affect 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
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 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
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, geographic regions or Federal, State, or local government
agencies; 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
[[Page 53754]]
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: October 4, 2001.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 01-26770 Filed 10-23-01; 8:45 am]
BILLING CODE 4310-05-P