[Federal Register Volume 70, Number 215 (Tuesday, November 8, 2005)]
[Proposed Rules]
[Pages 67654-67657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22194]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-108-FOR]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: We are announcing receipt of a proposed amendment to the West
Virginia regulatory program (the West Virginia program) under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act).
West Virginia proposes to revise its Code of State Regulations (CSR)
concerning surety bonds. The amendment is intended to provide the State
with an alternative source of reliable financial information about the
surety, and to allow sureties that are licensed and in good financial
condition but are not currently listed with the U.S. Department of the
Treasury as an acceptable surety of Federal bonds to provide surety
bonds to the coal industry in West Virginia. The proposed amendment was
authorized by the West Virginia Secretary of State as an emergency rule
under the State's Administrative Procedures Act.
DATES: We will accept written comments on this amendment until 4 p.m.
(local time), on December 8, 2005. If requested, we will hold a public
hearing on the amendment on December 5, 2005. We will accept requests
to speak at a hearing until 4 p.m. (local time), on November 23, 2005.
ADDRESSES: You may submit comments, identified by WV-108-FOR, by any of
the following methods:
E-mail: [email protected]. Include WV-108-FOR in the subject
line of the message;
Mail/Hand Delivery: Mr. Roger W. Calhoun, Director,
Charleston Field Office, Office of Surface Mining Reclamation and
Enforcement, 1027 Virginia Street, East, Charleston, West Virginia
25301; or
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency
docket number for this rulemaking. For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Comment Procedures'' heading in the
SUPPLEMENTARY INFORMATION section of this document. You may also
request to speak at a public hearing by any of the methods listed above
or by contacting the individual listed under FOR FURTHER INFORMATION
CONTACT.
Docket: You may review copies of the West Virginia program, this
amendment, a listing of any scheduled public hearings, and all written
comments received in response to this document at the addresses listed
below during normal business hours, Monday through Friday, excluding
holidays. You may also receive one free copy of this amendment by
contacting OSM's Charleston Field Office listed below.
Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of
[[Page 67655]]
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, 601 57th
Street, SE, Charleston, WV 25304, Telephone: (304) 926-0490.
In addition, you may review a copy 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, 313 Harper Park Drive, Suite 3, Beckley, West Virginia 25801,
Telephone: (304) 255-5265.
FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director,
Charleston Field Office, Telephone: (304) 347-7158. Internet:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Description of the Proposed 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). 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 October 17, 2005 (Administrative Record Number WV-
1441), the West Virginia Department of Environmental Protection (WVDEP)
submitted an amendment to its program under SMCRA (30 U.S.C. 1201 et
seq.). The amendment consists of a proposed revision to CSR 38-2-
11.3.a.3 concerning surety bonds, a briefing document, an emergency
rule justification, which includes an affidavit that was submitted in
support of the emergency rule package, and a decision by the Secretary
of State dated October 11, 2005, approving the emergency rule.
In its submittal of this amendment, the WVDEP stated that its
current rule at CSR 38-2-11.3.a.3 requires that after July 1, 2001, a
surety must be recognized by the Treasurer of the State as holding a
certificate of authority from the United States Department of the
Treasury as an acceptable surety on Federal bonds (otherwise referred
to as being ``T-Listed''). The WVDEP stated that the original standard
was adopted to address concerns about the financial solvency of
sureties providing reclamation bonds in West Virginia. The WVDEP did
not have the necessary resources or expertise to regularly and timely
monitor the financial condition of sureties doing business in West
Virginia. However, a surety that is T-Listed is required to provide, on
a regular basis, financial information to the U.S. Department of
Treasury, which reviews this information and provides its findings to
state regulatory agencies. While this information provided by the
Department of Treasury has been helpful, WVDEP stated, this restriction
has prevented sureties that are not T-Listed, and that are otherwise in
good financial condition, from providing reclamation bonds in West
Virginia. The WVDEP stated that this, along with other reasons, has
adversely impacted the market for reclamation bonds in West Virginia.
Further, WVDEP stated, since a surety must have at least two years
experience providing surety bonds before it can be T-Listed, a new
insurance company or an existing insurance company that has not
previously issued surety bonds cannot offer surety bonds in West
Virginia.
The WVDEP stated that the proposed amendment to CSR 38-2-11.3.a.3
not only addresses the concerns noted above by providing an alternative
source of reliable financial information about the surety, but it also
allows sureties that are licensed and in good financial condition but
are not T-Listed to provide surety bonds in West Virginia.
The WVDEP stated that an ``emergency'' exists under the State's
Administrative Procedures Act because there is presently a great demand
for reclamation bonds from the coal industry in West Virginia that is
not being met by the limited number of sureties currently offering
surety bonds in West Virginia. As a result, alternative more expensive
means are being used by coal companies to comply with the State's
bonding requirements. Among other things, this has greatly restricted
the availability of capital for the development of new coal mines and
the creation of new jobs. The State acknowledges that at a time when
coal is so important to West Virginia's economy, this dearth of surety
bonds is having a significant negative impact on West Virginia's coal
industry. The proposed amendment to 38 CSR 2 is thus necessary ``to
prevent substantial harm to the public interest.''
Specifically, West Virginia proposes the following amendment.
CSR 38-2-11.3.a.3 Surety
The existing rule currently provides that surety received after
July 1, 2001, must be recognized by the treasurer of the state as
holding a current certificate of authority from the U.S. Department of
the Treasury as an acceptable surety on Federal bonds. This provision
is proposed to be amended by adding new language at the end of the
existing requirement. As amended, CSR 38-2-11.3.a.3 provides as
follows:
11.3.a.3. Surety received after July 1, 2001 must: (i) Be
recognized by the treasurer of state as holding a current
certificate of authority from the United States Department of the
Treasury as an acceptable surety on federal bonds; Or (ii) submit to
the Secretary proof that the surety holds a valid license issued by
the basis a certificate of good standing or other evidence
demonstrating that the surety remains licensed or otherwise in good
standing with the West Virginia Insurance Commissioner and the
insurance regulator of its domiciliary state and within four (4)
years take all steps necessary to obtain a certificate of authority
from the United States Department of the Treasury as an acceptable
surety on federal bonds.
The WVDEP filed the emergency rule with the West Virginia Secretary
of State on September 21, 2005. The Secretary of State approved the
rule on an emergency basis pursuant to W. Va. Code 29A-3-15a on October
11, 2005.
The WVDEP also filed a legislative rule containing the same
language with the Secretary of State on September 21, 2005
(Administrative Record Number WV-1442). At the same time, the State
announced a public comment period on the legislative rule. The public
comment period commenced on September 21, 2005, and closed on October
27, 2005. A public hearing was held at the WVDEP office in Kanawha City
prior to the close of the comment period.
[[Page 67656]]
On October 3, 2005, WVDEP provided OSM a copy of the proposed rule
for informal review. Unlike the State's existing surety bond provisions
at CSR 38-2-11.3.a.1 and the Federal surety bond requirements at 30 CFR
800.20(a), OSM notified the State that the proposed revision at CSR 38-
2-11.3.a.3 did not appear to require the surety to be licensed to do
business in the State. To resolve this concern and to make additional
clarifications without altering the purpose or intent of either the
emergency or the legislative rule, on October 14, 2005 (Administrative
Record Number WV-1443) OSM recommended that the language in both rules
be revised as follows:
11.3.a.3. Any company that executes surety bonds in the State
after July 1, 2001, must: (i) be recognized by the treasurer of the
state as holding a current certificate of authority from the United
States Department of the Treasury as an acceptable surety on federal
bonds by being included on the Treasury Department's listing of
approved sureties (Department Circular 570); or (ii) submit proof to
the Secretary that it holds a valid license issued by the West
Virginia Insurance Commissioner, and agree to submit to the
Secretary on at least a quarterly basis a certificate of good
standing from the West Virginia Insurance Commissioner and such
other evidence from the insurance regulator of its domiciliary
state, if other than West Virginia, demonstrating that it is also in
good standing in that state. Companies not included on the United
States Treasury Department's listing of approved sureties must
diligently pursue application for listing, submit evidence on a
semi-annual basis demonstrating that they are pursuing such listing,
and within four (4) years, obtain a certificate of authority from
the United States Department of the Treasury as an acceptable surety
on federal bonds.
State officials agreed that while the recommended technical
revisions offered by OSM were better and further clarified the intent
of their initial rule, they needed to wait until after the close of
their comment period before making any changes to the rule. The WVDEP
intends to submit these changes and any additional revisions to OSM
after the close of the State's comment period on October 27, 2005. This
provision is expected to be in the form of both an emergency and a
legislative rule. If the revised rules contain language identical to
the language recommended by OSM and included herein, that revision will
be acted upon by OSM in this rulemaking. If substantive changes beyond
or other than those recommended by OSM are included in the revised
rules, we may need to reopen the comment period.
The legislative rule will be submitted to the Legislative
Rulemaking Review Committee after the close of the comment period, and
it is to be acted upon by the West Virginia Legislature during the
upcoming 2005-2006 regular legislative session. If that rule is adopted
with the identical language recommended by OSM as described above, no
further action will be required by OSM, and it will become part of West
Virginia's permanent regulatory program upon submission by the State.
Given that an emergency situation exists in West Virginia with
regard to surety bonds and to avoid any unnecessary delays in approving
the proposed State rule, OSM is requesting comments on both the
proposed State rule and the suggested revisions to that rule as
described above. Any changes adopted by the State after the close of
its public comment period will result in the revision to both its
emergency and legislative rules. As mentioned above, any substantive
changes in the proposed State rules that go beyond those described
herein will be subject to further rulemaking.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether these amendments satisfy the applicable program
approval criteria of 30 CFR 732.15. If we approve these revisions they
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 recommendations. We may not consider or respond to your
comments when developing the final rule if they are received after the
close of the comment period (see DATES). We will make every attempt to
log all comments into the administrative record, but comments delivered
to an address other than the Charleston Field Office may not be logged
in.
Electronic Comments
Please submit Internet comments as an ASCII, Word file avoiding the
use of special characters and any form of encryption. Please also
include ``Attn: SATS NO. WV-108-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 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. 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 comments. 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 p.m. (local time), on
November 23, 2005. If you are disabled and need special accommodations
to attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. 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 a hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at the 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.
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
will be open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the Administrative Record.
[[Page 67657]]
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 regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempt from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and promulgated by a specific State, not by
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR parts
730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
The basis for this determination is that our decision is on a State
regulatory program and does not involve a Federal regulation involving
Indian lands.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon the data
and assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) Does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the analysis performed
under various laws and executive orders for the counterpart Federal
regulations.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the analysis performed
under various laws and executive orders for the counterpart Federal
regulations.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 21, 2005.
Brent Wahlquist,
Regional Director, Appalachian Region.
[FR Doc. 05-22194 Filed 11-7-05; 8:45 am]
BILLING CODE 4310-05-P