[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

[[Page 53751]]

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