[Federal Register Volume 74, Number 139 (Wednesday, July 22, 2009)]
[Rules and Regulations]
[Pages 36113-36116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16796]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-115-FOR; OSM-2009-0006]
West Virginia Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: We are approving, on an interim basis, an 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 revised its Surface Coal Mining and Reclamation Act to
effect changes concerning its alternative bonding system. The tax
provisions of the amendment are intended to increase and extend the
special reclamation tax, subject to biennial review by the legislature,
and remove the additional tax. We are approving the increase and
extension of the special reclamation tax, at the rate of fourteen and
four-tenths cents per ton of clean coal mined, for deposit in the
Special Reclamation Fund and the Special Reclamation Water Trust Fund,
on an interim basis, with our approval becoming effective upon
publication of this interim rule.
DATES: Effective Date: This rule is effective July 22, 2009. Comment
Date: We will accept written comments until 4 p.m., local time August
21, 2009. If requested, we will hold a public hearing on August 17,
2009. We will accept requests to speak until 4 p.m., local time on
August 6, 2009.
ADDRESSES: You may submit written comments by any of the following two
methods:
Federal eRulemaking Portal: http://www.regulations.gov.
The proposed rule has been assigned Docket ID: OSM-2009-0006. If you
would like to submit comments through the Federal eRulemaking Portal,
go to http://www.regulations.gov and do the following. Click on the
``Advanced Docket Search'' button on the right side of the screen. Type
in the Docket ID OSM-2009-0006 and click the ``Submit'' button at the
bottom of the page. The next screen will display the Docket Search
Results for the rulemaking. If you click on OSM-2009-0006, you can view
the proposed rule and submit a comment. You can also view supporting
material and any comments submitted by others.
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. Please include the rule identifier (WV-115-FOR) with your
written comments.
Instructions: All submissions received must include the agency
Docket ID (OSM-2009-0006) for this rulemaking. For detailed
instructions on submitting comments and additional information on the
rulemaking process, see ``IV. Public Comment Procedures'' 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.
[[Page 36114]]
Docket: The interim rule and any comments that are submitted may be
viewed over the internet at http://www.regulations.gov. Look for Docket
ID OSM-2009-0006. In addition, 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
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, 604 Cheat Road, Suite 150, Morgantown, West Virginia
26508, 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. E-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
II. Description and Submission of the Amendment
III. OSM's Findings
IV. Public Comment Procedures
V. OSM's Decision
VI. 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 and Submission of the Amendment
By letter dated May 22, 2009, and received on May 28, 2009
(Administrative Record Number WV-1518), 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 includes changes to
the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA) as
contained in Enrolled Committee Substitute for Senate Bill 600
concerning the State's alternative bonding system.
Committee Substitute for Senate Bill 600 amended Section 22-3-11 of
the WVSCMRA. As stated in the State's May 22, 2009, letter transmitting
the amendment, Committee Substitute for Senate Bill 600 ``amends
Chapter 22-3-11 of the Code of West Virginia to implement actuarial
recommendations relating to the continuing fiscal viability of the
Special Reclamation Fund. The legislation consolidates what has been
known as ``the 7-and-7.4 tax'' (the 7.4 [cents] portion of which is
currently subject to annual renewal) into a 14.4 cent[s] tax per ton of
clean coal mined, reviewable every two years by the Legislature''.
Subsection 22-3-11(h)(1) of the WVSCMRA is amended by deleting the
year 2008, and adding language to provide that, ``For tax periods
commencing on and after July 1, 2009, every person conducting coal
surface mining shall remit a special reclamation tax * * *''
Former subparagraph (A) is revised by deleting language which
provides that the special reclamation tax be remitted for the initial
period of twelve months, ending June 30, 2009, and the word ``seven''
is deleted. As modified, the special reclamation tax is increased from
seven and four-tenths to fourteen and four-tenths cents per ton of
clean coal mined.
Former subparagraph (B) is amended by deleting language which
provides that ``[A]n additional seven cents per ton of clean coal
mined, the proceeds of which shall be deposited in the Special
Reclamation Fund.'' This revision eliminates the additional seven cents
tax which previously funded the Special Reclamation Fund.
Furthermore, language is deleted which provides that the additional
seven cents tax shall be reviewed and, if necessary, adjusted annually
by the Legislature upon the recommendation of the council pursuant to
the provisions of section seventeen, article one of this chapter. This
provision is modified to provide that, ``Beginning with the tax period
commencing on July 1, 2009, and every two years thereafter, the special
reclamation tax shall be reviewed by the Legislature to determine
whether the tax should be continued:''
Specifically, the amended language relating to the special
reclamation tax now reads as follows:
Chapter 22-3-11. Bonds; amount and method of bonding; bonding
requirements; special reclamation tax and funds; prohibited acts;
period of bond liability.
(h)(1) For tax periods commencing on and after July 1, 2009,
every person conducting coal surface mining shall remit a special
reclamation tax of fourteen and four-tenths cents per ton of clean
coal mined, the proceeds of which shall be allocated by the
secretary for deposit in the Special Reclamation Fund and the
Special Reclamation Water Trust Fund. 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. Beginning with the tax period commencing on July
1, 2009, and every two years thereafter, the special reclamation tax
shall be reviewed by the Legislature to determine whether the tax
should be continued: Provided, That the tax may not be reduced until
the Special Reclamation Fund and Special Reclamation Water Trust
Fund have sufficient moneys to meet the reclamation responsibilities
of the state established in this section.
III. OSM's Findings
Effective upon publication of this interim rule, we are approving,
on an interim basis, the revisions to Subsection 22-3-11(h)(1) of the
WVSCMRA, which increase and extend the special reclamation tax and
remove the additional tax. Since these revisions continue revenues into
the State's alternative bonding system at the same rate as previously
approved, we find that they do not render the West Virginia program
less effective than the Federal regulations at 30 CFR 800.11(e).
Because our approval of these revisions
[[Page 36115]]
is interim, and in order to satisfy the public participation
requirements for approval or disapproval of State program amendments,
we will accept comments on the increase and extension of the special
reclamation tax in accordance with Section IV of this Federal Register
notice. Following our review of the comments received, we will issue a
final rule announcing the Director's final decision on the revisions to
Subsection 22-3-11(h)(1) of the WVSCMRA that are the subject of this
interim rule.
Pursuant to the Administrative Procedure Act at 5 U.S.C.
553(b)(3)(B), we find that good cause exists to approve the revisions
to Subsection 22-3-11(h)(1) of the WVSCMRA on an interim basis without
notice and opportunity for comment, because to require notice and
opportunity for comment now would be contrary to the public interest in
that the special reclamation tax is due to expire on June 30, 2009, and
it would delay the start of the collection of the increased special
reclamation tax. Enrolled Committee Substitute for Senate Bill 600
becomes effective under State law on July 1, 2009, and the public
interest in the accomplishment of prompt and thorough reclamation of
bond forfeiture sites, including water treatment of discharges
therefrom, will be adversely affected if the 14.4 cents per ton special
reclamation tax cannot be collected on and after that effective date.
In any event, as explained above, the public will have an opportunity
to comment on the reinstatement and extension of the special
reclamation tax, before we make a final decision on the proposed
changes.
IV. 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 comments to OSM at one of the
addresses given above. Your 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) or sent to an address other
than those listed above (see ADDRESSES).
Availability of Comments: Before including your address, phone
number, e-mail address, or other personal identifying information in
your comment, you should be aware that your entire comment--including
your personal identifying information--may be made publicly available
at any time. While you can ask us in your comment to withhold your
personal identifying information from public review, we cannot
guarantee that we will be able to do so.
Public Hearing: If you wish to speak at the public hearing, contact
the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m.
(Eastern time), on August 6, 2009. If you are disabled and need
reasonable accommodation 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 there is only limited interest in participating
in a public hearing, 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 Docket for this rulemaking.
V. OSM's Decision
Based on the above findings, we are approving on an interim basis,
the specific revisions outlined above to the West Virginia program as
provided to us on May 28, 2009. To implement this decision, we are
amending the Federal regulations at 30 CFR Part 948, which codify
decisions concerning the West Virginia program. We find that good cause
exists under 5 U.S.C. 553(d)(3) to make this interim rule effective
immediately. Section 503(a) of SMCRA requires that the State's program
demonstrate that the State has the capability of carrying out the
provisions of the Act and meeting its purposes. Making this rule
effective immediately will expedite that process. SMCRA requires
consistency of State and Federal standards.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on an analysis of the State submission.
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''
[[Page 36116]]
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 has a special reclamation tax of $0.074 per ton of clean coal
mined which is due to expire on June 30, 2009. The tax is used to
reclaim bond forfeiture sites in the State. On May 4, 2009, the
Governor signed into law a bill that will reinstate and increase the
special reclamation tax to $0.144 per ton of clean coal mined. The
additional $0.07 tax is being removed, and the previous one-year
expiration period for the special reclamation tax is being deleted.
Under the amended language, the Legislature will review the special
reclamation tax every two years to determine whether the tax should be
continued. The tax is payable by all operators mining coal in West
Virginia, regardless of size. The tax, which is an important source of
revenue for the State's alternative bonding system, is used to
supplement reclamation bond amounts in the event of forfeiture.
Small Business Regulatory Enforcement Fairness Act
Based upon the above analysis and discussion, we have determined
that 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.
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: June 15, 2009.
Thomas D. Shope,
Regional Director, Appalachian Region.
0
For the reasons set out in the preamble, 30 CFR part 948 is amended as
set forth below:
PART 948--WEST VIRGINIA
0
1. The authority citation for part 948 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 948.15 is amended by adding a new entry to the table in
chronological order by ``Date of publication of final rule'' to read as
follows:
Sec. 948.15 Approval of West Virginia regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Date of Citation/description
Original amendment submission publication of of approved
date final rule provisions
------------------------------------------------------------------------
* * * * * * *
May 28, 2009.................. July 22, 2009.... W. Va. Code 22-3-
11(h)(1) (interim
approval).
------------------------------------------------------------------------
[FR Doc. E9-16796 Filed 7-21-09; 8:45 am]
BILLING CODE 4310-05-P