This rule has been determined to be not significant and was not reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

The information collection requirements contained in this regulation have been approved by OMB under the provisions of 44 U.S.C. chapter 35 and have been assigned OMB control number 0575-0172, in accordance with the Paperwork Reduction Act (PRA) of 1995. This rule does not impose any new or modified information collection requirements.

RHS is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies, in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. In accordance with this rule: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings in accordance with the regulations of the National Appeals Division of USDA in 7 CFR part 11 must be exhausted before bringing suit in court challenging action taken under this rule, unless those regulations specifically allow bringing suit at an earlier time.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, 2 U.S.C. 1532, RHS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires RHS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal Governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The programs affected by this final rule are 10.410 Very Low to Moderate Income Housing Loans and 10.417 Very Low-Income Housing Repair Loans and Grants.

For the reasons set forth in the final rule related Notice to 7 CFR part 3015, subpart V, these programs are not subject to Executive Order 12372 which requires intergovernmental consultation with State and local officials.

This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” It is the determination of RHS that this action does not constitute a major Federal action significantly affecting the quality of the human environment, and in accordance with the National Environmental Policy Act of 1969, Pub. L. 91-190, an Environmental Impact Statement is not required.

This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has determined and certified by signature of this document that this rule will not have a significant economic impact on a substantial number of small entities since this rulemaking action does not involve a new or expanded program.

It is the policy of RHS to publish rules determined to be non-controversial and unlikely to result in adverse comments as direct final rules. RHS Policy for direct final rules was published on March 27, 2003 at 68 FR 14889. No adverse comments are anticipated on the changes in this rule. Adverse comments suggest that the rule should not be adopted or that a change should be made to the rule. Unless any adverse comments are received within 60 days of publication, this rule will be effective 75 days from the date of publication.

According to 7 CFR 3550.10, an existing dwelling is currently defined as a dwelling that is more than 1 year old, or less than 1 year old and covered by an approved 10-year warranty plan. 7 CFR 3550.10 further defines a new dwelling as a dwelling that is to be constructed, or an already-existing dwelling that is less than 1 year old and is not covered by an approved 10-year warranty plan. This gives the impression that the major difference between a new and existing dwelling is coverage by a 10-year warranty plan. This has been a cause for much confusion with field staff, applicants, contractors, and Realtors. The 10-year warranty allows the Agency to provide full financing on homes that are less than 1 year old when there is not other means of adequate and verifiable documentation of construction quality of new dwellings. This change will simplify the definitions of new and existing homes but does not otherwise change any policy on how new and existing homes are financed. The only anticipated impact of this change is clarity on what constitutes a new or existing dwelling for the purposes of financial assistance through the Direct Single Family Housing programs. No change will result from this revision regarding the applicability or value of a 10-year warranty.

According to 7 CFR 3550.61(b) and 7 CFR 3550.110(b) essential buildings must be insured in an amount at least equal to the balance of the secured debts. Many companies are reluctant to issue policies when the coverage is well in excess of the replacement value of the home. This is a particular problem in areas of high land costs and makes it extremely difficult for borrowers/homeowners to secure affordable insurance coverage. In addition, according to 7 CFR 3550.61(d) and 7 CFR 3550.110(d) loss deductible clauses may not exceed $250 or 1 percent of the insurance coverage, whichever is greater. The deductible for any 1 building may not exceed $750. The cost of housing has risen dramatically and so has the cost of insurance. Some companies are reluctant to provide coverage with deductible clauses with a low dollar threshold. This makes it very difficult for new homeowners to secure affordable insurance coverage.

The change in this requirement conforms with industry standards and will adequately protect both the borrower's and the government's interest. With this change, the borrower will be asked to insure their house in an amount that is the lesser of 100% of the insurable value ( i.e. the cost to restore the property back to its state prior to a loss) of the house or the unpaid principal balance. The loss deductible clause requirement will be based on the higher of 1% of the face value of the policy or $1,000 unless state law requires a higher maximum deductible amount. This change will make it easier for applicants to secure affordable insurance coverage.

In an interim rule effective May 12, 2004, and published in the Federal Register on May 17, 2004 (69 FR 27823-27827, Docket No. 02-091-1), we amended the general indemnity regulations contained in 9 CFR part 53 to provide for the payment of indemnity to owners for fish destroyed because of spring viremia of carp (SVC). We also amended the interstate movement regulations to prevent the movement of fish infected with or exposed to SVC. These actions were necessary to help control and eradicate this disease in the United States.

Comments on the interim rule were required to be received on or before July 16, 2004. We received one comment by that date, from a private citizen. This commenter raised several issues related to the interim rule. These issues are discussed below.

The commenter objected to payment of indemnity to eligible owners on the grounds that such payment is contrary to the public interest and will only reward poor practice among aquaculturists. We believe that payment of indemnity is necessary to provide an incentive for aquaculturists to participate in the surveillance and eradication program and thus to ensure the success of the program. We are making no changes to the rule in response to this comment.

The commenter stated that since fish destroyed as a result of infection or exposure to SVC may be sold for rendering or salvage value, the payment received for such sales should be all the recompense aquaculturists receive. We note that not all fish destroyed because of SVC may be sold for rendering or salvage value, such as ornamental fish infected with SVC. The regulations provide that any salvage value collected for fish destroyed because of SVC will be subtracted from the amount of any indemnity payment a producer may receive.

The commenter stated that the United States Department of Agriculture should neither support aquaculture nor extend payment of indemnity to aquaculturists because fish are not livestock. We point out that the National Aquaculture Act of 1980, as amended by the National Aquaculture Improvement Act of 1985 (16 U.S.C. 2801-2810), requires the Secretary to support and develop aquaculture programs. Furthermore, the Animal Health Protection Act (7 U.S.C. 8301-8317), from which the Animal and Plant Health Inspection Service (APHIS) derives its authority to regulate matters associated with animal health, defines livestock as “all farm-raised animals.” We interpret this to mean aquatic as well as terrestrial animals. We are making no changes to the rule in response to this comment.

The commenter further stated that the importation of carp should be prohibited and carp should be banned in the United States. We believe such measures to be unwarranted. We are making no changes to the rule in response to this comment.

The commenter noted that since the disease survives in mud and water, eradication would be impossible or at least expensive. We note that there are two treatments available to control the survival of the virus in mud and water. Depending on the size of the pond, it may simply be allowed to dry out, or it may be treated with slaked lime, which raises the pH of the pond, penetrates the mud, and renders the virus inactive. Neither of these treatments is difficult or excessively expensive. We are making no changes to the rule in response to this comment.

The commenter also objected to the practice of aquaculture on the grounds that it represents an environmental threat. We note that APHIS's mission is to protect plant and animal health, not to dictate the means by which plants and animals are raised, unless those means pose a risk to plant or animal health. We do not believe that aquaculture in itself poses an inherent risk to the health of fish so raised. We are making no changes to the rule in response to this comment.

Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule without change.

This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.

Further, this action has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

On August 13, 2001, FSIS published a proposal in the Federal Register (66 FR 42472) to add Slovakia to the list of countries eligible to export meat and meat products to the United States. As discussed in that proposed rulemaking, in 1993, the country formerly known as Czechoslovakia split into two separate countries, the Czech Republic and Slovakia. Although Czechoslovakia had been listed as eligible to export meat and meat products to the United States since 1972, the part of the country that became Slovakia had never had any establishments certified to export meat or meat products to the United States. Thus, FSIS did not have sufficient information about Slovakia's meat inspection system to determine whether it was equivalent to the U.S. system. Therefore, the Agency required that Slovakia request and receive approval from FSIS before it could be deemed eligible to export meat and meat products to the United States.

In the proposed rule, FSIS reported that Slovakia had met the certification requirements imposed in the United States' meat inspection regulations, that its meat processing inspection system is equivalent to that of the United States, and that its official residue control laboratory is fully capable of testing meat food products. Therefore, FSIS proposed to permit Slovakia to export processed meat products to the United States.

Because only one pork processing establishment in Slovakia had requested certification to export meat products to the United States, Slovakia requested that FSIS evaluate and approve only its meat processing inspection system. Thus, FSIS' equivalence evaluation of Slovakia's meat inspection system did not include a review of the slaughter inspection component. As a result, the carcasses or parts of any cattle, sheep, swine, or goats processed in establishments in Slovakia approved to export to the United States must be derived from animals slaughtered in the United States under USDA inspection or in establishments in other countries that are certified as eligible to export to the United States. The government of Slovakia has agreed to conduct its program in a way that ensures that meat products processed in Slovakia are only prepared from cattle, sheep, swine, or goats that were slaughtered in certified establishments in eligible countries. If FSIS were to evaluate Slovakia's slaughter inspection system and determine that it is equivalent to that of the United States, the Agency would conduct a separate rulemaking.

Therefore, when this rule becomes effective, meat products processed in certified establishments in Slovakia will be eligible for exportation to the United States only if these products are derived from cattle, sheep, swine, or goats slaughtered in federally inspected establishments in the United States, or in certified slaughter establishments in other countries eligible to export meat to the United States.

FSIS received 36 comments on the proposed rule. Most were from private citizens and individual members of a women's agricultural organization, a few were from small cattle producers, and one was from a national cattle producer trade association. All commenters opposed adding Slovakia to the list of countries eligible to export meat and meat products into the United States.

Comment: Most of the commenters opposed the proposed rule because, at the time that the rule was published, Slovakia was listed in USDA's Animal and Plant Health Inspection Service (APHIS) regulations as a region that presents an undue risk of introducing bovine spongiform encephalopathy (BSE) into the United States (9 CFR 94.18(a)(2)). After publication of the proposed rule, APHIS amended its regulations to add Slovakia to the list of countries in which BSE is known to exist (9 CFR 94.18(a)(1)). The commenters stated that, because of Slovakia's BSE status, it should remain ineligible to export meat and meat products to the United States under FSIS' regulations.

One commenter opposed permitting Slovakia to export meat and meat products to the United States because Slovakia is not listed by APHIS as a region that is free from foot and mouth disease (FMD)(9 CFR 94.1). The commenter stated that if Slovakia were listed as eligible to export meat and meat products to the United States, there is a risk that these products could introduce FMD to the United States.

Response: FSIS considered both BSE and FMD risk in its evaluation process for meat products currently proposed for importation into the United States from Slovakia. 1 Although Slovakia would be listed in FSIS’ regulations as eligible to export meat products to the United States, FSIS’ regulations that list countries eligible to export products of cattle, sheep, swine, and goats to the United States do not authorize the entry of products that are ineligible for importation into the United States because they are from countries in which certain contagious and communicable diseases, such as FMD, exist as provided in 9 CFR part 94 ( see 9 CFR 327.2(b)). Meat products must comply with all U.S. requirements prior to entry. Before a shipment of meat or meat products may be presented for re-inspection at the port-of entry by FSIS, it must have first met the requirements of both the U.S. Customs Service and APHIS.

APHIS is responsible for keeping animal diseases, such as BSE and FMD, out of the country. Under Title 9, part 94 of its regulations (9 CFR 94), APHIS sets forth restrictions on the importation of any fresh, frozen, and chilled meat, meat products, and certain other edible products from countries in which certain animal diseases exist. Those products that APHIS has restricted from entering the United States because of animal disease conditions in the country of origin will be refused entry before reaching an FSIS import inspection facility.

FSIS and APHIS work closely together to ensure that meat and meat products imported into the United States comply with the regulatory requirements of both agencies. The agencies have established procedures for communication to ensure that products that APHIS has restricted from entering the United States because of animal disease concerns are refused entry into the United States.

For the reasons discussed above, FSIS believes that sufficient controls are in place to ensure that listing Slovakia as eligible to export meat and meat products processed in Slovakia will not pose a BSE or FMD risk to the United States.

Comment: Several commenters, all individual consumers, opposed the importation of beef from any foreign country into the United States due to general concerns about the safety of foreign beef.

Response: Meat and meat products exported to the United States from another nation must meet equivalent safety standards applied to meat and meat products produced in the United States. FSIS makes determinations of equivalence by evaluating whether foreign food regulatory systems have in place the appropriate level of protection to meet the equivalent level of food safety as provided by the U.S. domestic system. Thus, while foreign food regulatory systems need not be identical to the U.S. system, they must employ equivalent sanitary measures that provide the same level of protection against food hazards as is achieved domestically. Beef and beef products from foreign countries that do not comply with these requirements are ineligible for importation into the United States.

As discussed above, only one pork processing establishment in Slovakia has requested certification to export meat products to the United States. Furthermore, beef and beef products are among the products that are ineligible for importation into the United States under 9 CFR part 94 of APHIS’ regulations. Thus, at this time, Slovakia will not be exporting beef to the United States.

Comment: One commenter objected to the importation of live cattle into the United States until the United States has a “* * * rigid inspection system set up [that] is fool proof against any bioterrorism attack.”

Response: This comment is outside the scope of this rulemaking. This final rule does not affect the importation of live cattle from Slovakia into the United States. The importation of live cattle from Slovakia into the United States is prohibited by APHIS under 9 CFR 94.18(a)(1).

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this final rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

This final rule has been reviewed under Executive Order 12866. It has been determined to be non-significant, for purposes of E.O. 12866, and therefore, has not been reviewed by the Office of Management and Budget (OMB).

There is only one establishment in Slovakia that has applied to export meat products to the United States. This establishment plans to export non-heat treated shelf stable pork products, such as sausages and salami, and non-shelf stable cooked pork products, such as pasteurized hams and specialty cured, cooked, and smoked meat products. U.S. imports from this establishment are expected to total 520 tons per year.

U.S. firms currently export no meat products and only a small amount of poultry products to Slovakia. Table A presents the most updated information currently available of U.S. exports of poultry and pork products to Slovakia from 1994 to 2000. Poultry exports were highest in 1994, before declining and eventually falling to zero in 1996. Poultry exports reappeared again in 1998, but again at relatively low levels.

Table A also reports U.S. exports of pork products to Slovakia. Between 1994 and 2000, U.S. firms exported pork products to Slovakia only once, in 1994. Since then, the U.S. has not had any exports of meat products to Slovakia.

This final rule could begin to reopen trade between the United States and Slovakia. During much of the mid-1990's, many emerging democratic nations faced substantial economic obstacles. Listing Slovakia as a country eligible to export meat and meat products to the United States could begin the process of reacquainting Slovakia with U.S. firms.

Expected benefits from this rule would generally accrue to consumers from an increased choice of meat products in the marketplace. The costs of this final rule will accrue primarily to producers in the form of greater competition from Slovakia. However, the volume of trade stimulated by this rule is expected to be very small and is likely to have little effect on supply and farm-level prices.

In addition to this action, FSIS considered the option of not listing Slovakia as eligible to export meat and meat products to the United States. This alternative was rejected however, because FSIS found that the Slovakian meat inspection system complies with all the requirements of the FMIA and FSIS regulations for exporting processed meat and meat products to the United States.

The Administrator, FSIS, has made an initial determination that this final rule will not have a significant impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act (5 U.S.C. 601 et seq .). This final rule adds Slovakia to the list of countries eligible to export meat and meat products to the United States. Only one establishment in Slovakia has applied to export product to the United States. This establishment plans to export approximately 520 tons of non-heat treated shelf stable pork products and non-shelf stable cooked pork products to the United States per year. Because the volume of pork products exported from Slovakia to the United States is expected to be very small, this final rule is not likely have much of an effect on supply and prices. Therefore, this final rule is not expected to have a significant impact on small domestic entities that produce these types of products.

No new paperwork requirements are associated with this final rule. A foreign country that wants to export meat products to the United States is required to provide information to FSIS to certify that its inspection system provides standards equivalent to those of the United States and that the legal authority for the system and its implementing regulations are equivalent to those of the United States before it may start exporting such product to the United States. FSIS collects this information one time only. FSIS gave Slovakia questionnaires asking for detailed information about the country's inspection practices and procedures to assist the country in organizing its materials. This information collection was approved under OMB number 0583-0094. This final rule contains no other paperwork requirements.

Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that the public and in particular minorities, women, and persons with disabilities, are aware of this final rule, FSIS will announce it on-line through the FSIS Web page located at http://www.fsis.usda.gov.

The Regulations.gov Web site is the central online rulemaking portal of the United States government. It is being offered as a public service to increase participation in the Federal government's regulatory activities. FSIS participates in Regulations.gov and will accept comments on documents published on the site. The site allows visitors to search by keyword or Department or Agency for rulemakings that allow for public comment. Each entry provides a quick link to a comment form so that visitors can type in their comments and submit them to FSIS. The Web site is located at http://www.regulations.gov.

FSIS also will make copies of this Federal Register publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, recalls, and other types of information that could affect or would be of interest to our constituents and stakeholders. The update is communicated via Listserv, a free e-mail subscription service consisting of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals who have requested to be included. The update also is available on the FSIS web page. Through Listserv and the web page, FSIS is able to provide information to a much broader, more diverse audience.

Slovakia  1

We are adopting  1 amendments that will add Rules 401  2 and 402  3 to Regulation S-T, revise Rules 11  4 and 305  5 under Regulation S-T, 6 Item 601  7 under Regulation S-K, 8 Item 601  9 under Regulation S-B, 10 Rules 13a-14  11 and 15d-14  12 under the Securities Exchange Act of 1934 (“Exchange Act”)  13 and Rules 8b-1, 14 8b-2  15 and 30a-2  16 under the Investment Company Act of 1940 (“Investment Company Act”). 17 We also are adopting amendments that revise Forms 20-F  18 and 6-K  19 under the Exchange Act and add new Rule 8b-33 under the Investment Company Act.

On September 27, 2004, we proposed to adopt amendments to Regulation S-T to allow registrants to supplement their Commission filings by furnishing financial data on the Commission's Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”) as an exhibit using eXtensible Business Reporting Language (“XBRL”), 20 beginning with the 2004 calendar year-end reporting season.

All registrants who file with the Commission are generally required to file electronically on EDGAR. 21 The EDGAR database, accessible on our Web site at http://www.sec.gov, provides ready access to a broad range of registrant information. Electronic submissions are governed by Regulation S-T, in conjunction with the EDGAR Filer Manual  22 and the electronic filing provisions of applicable rules, regulations, and forms. Since we first adopted rules to implement the operational phase of EDGAR, we have continually sought to make EDGAR more useful to the investing public. Proponents of the XBRL reporting standard assert that it offers benefits for all participants in the financial information supply chain, from registrants, who would benefit from potential efficiencies in preparing their filings, and improved transparency of their filings, resulting in broader analyst coverage, more market exposure and greater investor confidence, to regulators and investors, who would benefit from ready access to tagged financial data for analytical and review purposes. 23

The amendments that we adopt today will permit volunteers to submit on EDGAR supplemental exhibits using XBRL for the purpose of allowing registrants, the Commission and others to test and evaluate tagging technology. The voluntary program will permit any registrant to participate merely by submitting an XBRL exhibit in the required manner. The XBRL exhibits will be publicly available but will be considered furnished rather than filed. Although XBRL exhibits will be required to accurately reflect the information that appears in the corresponding part of the official filing, the purpose of submitting XBRL data is to test the related format and technology and, as a result, investors and others should continue to rely only on the official version of a filing and not rely on the XBRL data in making investment decisions. We will include cautionary language to this effect on the Commission's Web site.

We received 28 comment letters relating to the Proposing Release from various constituencies, including issuers, accounting firms, financial analysts, filing agents and associations representing the interests of such constituencies. 24 Commenters expressed general overall support for the Commission's approach to implementing the voluntary program and investigating tagged data. Commenters also supported our approach of not limiting the program by size or specific industry. 25 The final rules include a number of changes from the proposed rules to address the comment letters, including commenters' recommendations to encourage participation in the program and provide volunteers with greater flexibility. For example, we have addressed commenters' requests to allow volunteers the option of whether to submit the notes to the financial statements in XBRL in the voluntary program. 26 There were many additional comments addressing the development of the voluntary program and the XBRL technology, including taxonomy development, auditor attestation and audit opinions. We discuss specific comments where applicable in this release; otherwise we may consider these comments in the future based on our experience with the voluntary program.

We emphasize that we are in the preliminary phases of testing XBRL and we may amend the voluntary program as the technology becomes more mature and based on our experience with the program.

In conjunction with establishing the voluntary filing program, we are adding new Rule 401 to Regulation S-T that will allow filers, on a voluntary basis, to furnish supplemental financial information using XBRL. The revision to Rule 11 of Regulation S-T, adopted as proposed, makes “XBRL-Related Documents” a defined term that means documents related to presenting financial information in XBRL format that are part of a voluntary submission in electronic format in accordance with new Rule 401. New Rule 401 generally provides that a registrant participating in the voluntary program (a “volunteer”) may submit XBRL-Related Documents in electronic format if they meet all the conditions of the rule. Appendix L to the EDGARLink Filer Manual will provide instructions and guidance on the preparation, submission, and validation of EDGAR-acceptable electronic filings with attached XBRL-Related Documents. 27 The EDGAR system upgrade to Release 8.10 is scheduled to become available on February 7, 2005 to, among other things, enable EDGAR to process XBRL-Related Documents when the voluntary program becomes effective on March 16, 2005. 28

The amendments require that volunteers furnish XBRL-Related Documents as an exhibit to either the Exchange Act or Investment Company Act filing from which they were derived, or as an exhibit to a filing on Form 8-K  29 or Form 6-K, 30 as applicable, that references, and is submitted no earlier than, the related filing. 31 The Forms 8-K and 6-K alternative does not apply to volunteers that are registered management investment companies because they are generally not eligible to file those forms. 32 XBRL-Related Documents will be identifiable as Exhibit 100 to the corresponding filing.

Rule 401, as adopted, contains three requirements for disclosure that must appear in the filing with which the XBRL-Related Documents are submitted. These requirements were not included in the rule as proposed. First, Rule 401 requires volunteers to describe the XBRL-Related Documents (whether they are filed as an exhibit to the related official filing or to a Form 8-K or Form 6-K that references such filing) either as “unaudited” or, for quarterly financial statements, “unreviewed.” Second, Rule 401 requires volunteers to provide cautionary language advising investors that the purpose of furnishing XBRL data is to test the format and the technology and, as a result, investors should not rely on the XBRL data in making investment decisions. This additional disclosure will complement the similar cautionary statements we plan to add to our Web site as described in the Proposing Release. Finally, Rule 401 provides that, if a reason to file a Form 8-K or Form 6-K or an amendment to a Form 8-K or Form 6-K is to submit as an exhibit XBRL-Related Documents that present information related to financial information filed as part of a different filing ( e.g. , a Form 8-K that references a previously filed Form 10-Q  33 ), volunteers must reference the official filing from which the data in the XBRL-Related Documents was derived. 34 These disclosures should be provided, as applicable, in:

• The exhibit index of the Forms 10-K, 35 10-Q, 10, 36 10-SB, 37 10-KSB, 38 10-QSB  39 or 20-F,

• Item 2.02 or 8.01 of Form 8-K, or

• The body of the Forms 6-K, N-CSR  40 or N-Q. 41

We received several comments and recommendations regarding disclosure about furnishing XBRL data. 42 One commenter agreed that it is reasonable to require registrants to describe the official filings to which the XBRL exhibits correspond because investors may not be aware that Exhibit 100 reflects XBRL data. 43 Another commenter  44 recommended that volunteers submit a letter describing management's basic decisions involving the use of taxonomies and policies about creating instance documents, including the correlation to printed financial statements and other relevant resources, the selection of taxonomies, additions and adjustments to the base taxonomy or taxonomies, and the level of tagging detail. 45 Another commenter believed that volunteers should be encouraged to disclose:

• That the financial information in the XBRL-Related Documents is appropriately tagged,

• The source of the tagged information ( e.g. , the financial statements, MD&A),

• The extent of tagging used, including whether there have been any changes in the extent of tagging or the use of extensions as compared to XBRL-Related Documents furnished for previous fiscal periods, and

• Whether any extensions meet the XBRL International technical specification. 46

The XBRL-Related Documents may be submitted at the same time as the official EDGAR filing to which they relate, either as an exhibit to the official filing or, for operating companies, as an exhibit to a Form 8-K or Form 6-K  47 filed simultaneously. Alternatively, the XBRL-Related Documents may be filed subsequent to the official EDGAR filing to which they relate, either in a later amendment to the official filing or, for operating companies, as an exhibit on Form 8-K or Form 6-K. Volunteers will not be permitted to submit the XBRL-Related Documents before they file the related official document. Although the amendments do not establish a deadline for submitting or amending XBRL data, volunteers are encouraged to submit the XBRL-Related Documents with the official document or shortly after the official document is filed. Volunteers will be free to submit their XBRL exhibits regularly or from time to time and can stop or start as they choose. If a volunteer amends the XBRL-Related Documents it submitted earlier, it should amend the filing to which the XBRL-Related Documents are attached as an exhibit. 48

Many commenters asserted that allowing volunteers to submit their XBRL-tagged financial statements after they file the related official filing will be important to securing volunteers. 49 Commenters recommended that a reasonable period of time be allowed for submitting XBRL-Related Documents and suggested periods typically ranging from 30 days up to 90 days. 50 One commenter recommended that no deadline be required. 51 Other commenters approved of a delay, but did not specify a time period. 52

As proposed, we have not implemented a submission deadline for furnishing XBRL data. One of the reasons for this decision is that volunteers may wish to furnish XBRL-Related Documents that relate to historical financial information from their previous Commission filings. While it would be preferable for registrants to submit all XBRL-Related Documents promptly, data elements in the submission would include date information and the voluntary program includes safeguards against reliance on the data. In addition, we recognize that registrants may be discouraged from participating in the voluntary program if we impose deadlines, especially during the early stages of the program when volunteers are testing the technology.

Some commenters recommended that rather than amend submissions, the volunteers be allowed to “withdraw” them from EDGAR. 53 However, submissions to EDGAR cannot, as a practical matter, be withdrawn after public dissemination.

The XBRL-Related Documents submitted in the voluntary program will be supplemental submissions and will not replace the required HTML or ASCII version of the financial information they contain. Volunteers will be required to continue to file their official EDGAR filings.

XBRL-Related Documents must contain only voluntary program content (“Voluntary Program Content”) that appears in voluntary program format (“Voluntary Program Format”) as further described below.

Voluntary Program Content must consist of mandatory content (“Mandatory Content”) and may be accompanied by optional content (“Optional Content”).

Mandatory Content consists of a complete set of information for all periods presented in the corresponding official EDGAR filing from one or more of the following categories (as filed in the corresponding official EDGAR filing):  54

• The complete set of financial statements (the only exceptions are that notes to the financial statements and schedules related to the financial statements may be omitted  55 unless the volunteer is a registered management investment company, in which case it must include Schedule I—Investments in Securities of Unaffiliated Issuers);  56

• Earnings information set forth in Form 6-K or Items 2.02 or 8.01 of Form 8-K (whether contained in the body of the Form 8-K or Form 6-K or in an exhibit, and whether filed or furnished); or

• Financial highlights or condensed financial information  57 (if the volunteer is a registered management investment company).

Optional Content can consist only of a complete set of information that is:

• For all periods presented in the corresponding official EDGAR filing;

• Related to financial information in the corresponding official EDGAR filing that is simultaneously submitted as Mandatory Content; and

• From one or more of the following categories (as filed in the corresponding official EDGAR filing):  58

Today we are adopting an updated EDGAR Filer Manual (Filer Manual). The Filer Manual describes the technical formatting requirements for the preparation and submission of electronic filings through the EDGAR system. 1 It also describes the requirements for filing using modernized EDGARLink. 2

The Filer Manual contains all the technical specifications for filers to submit filings using the EDGAR system. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format. 3 Filers should consult the Filer Manual in conjunction with our rules governing mandated electronic filing when preparing documents for electronic submission. 4

The revisions are being made primarily to support a voluntary program  5 that would allow the submission of eXtensible Business Reporting Language (XBRL) documents to assess the usefulness of data tagging in general and XBRL in particular. XBRL is an eXtensible Markup Language (XML) based language that is being developed by an international consortium. During the initial “voluntary” period that would begin in accordance with the requirements of the XBRL Voluntary Financial Reporting Program on the EDGAR System, EDGAR will support unofficial XBRL document attachments to official EDGAR submissions. Instructions for attaching unofficial XBRL documents to electronic submissions are included in Appendix L of the EDGAR Release 8.10 EDGARLink Filer Manual.

Revisions are also being made to provide support for the new requirement for filers to enter an effectiveness date on submission types 485BPOS and 486BPOS and the addition of the new Exhibit EX-99.Rule23C1 for Form N-CSR and rescinding of submission types N-23C-1 and N-23C-1/A. 6

Earlier last year, we proposed to amend Rule 12d2-2 under the Exchange Act to expand the use of Form 25 so that all issuers and national securities exchanges seeking to delist and deregister a class of securities under Section 12(b) of the Exchange Act in accordance with the rules of the exchange and the Commission would file a Form 25. 7 In addition, we proposed to amend Rule 101 of Regulation S-T to make mandatory the electronic submission on Form 25 of the delisting and/or deregistration. We have not yet adopted our proposed amendment to Rule 101; in the meantime, we will continue to accept paper submissions of Form 25 filings from exchanges, and paper applications for delisting and/or deregistration from exchanges and issuers. In addition, the list of Self-Regulatory Organizations in Appendix C.1.5 has been updated to show the name change of Cincinnati Stock Exchange to National Stock Exchange.

For EDGAR Release 8.10, the EDGARLink software and submission templates 1, 2, 3 and 5 will be updated to support the aforementioned submission form type changes. It is highly recommended that filers download, install, and use the new EDGARLink software and submission templates to ensure that submissions will be processed successfully. Previous versions of the templates may not work properly. Notice of the update has previously been provided on the EDGAR Filing Web site and on the Commission's public Web site. The discrete updates are reflected on the EDGAR Filing Web site and in the updated Filer Manual Volumes.

Along with adoption of the Filer Manual, we are amending Rule 301 of Regulation S-T to provide for the incorporation by reference into the Code of Federal Regulations of today's revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR Part 51.

You may obtain paper copies of the updated Filer Manual at the following address: Public Reference Room, U.S. Securities and Exchange Commission, 450 Fifth Street, NW., Washington DC 20549-0102. We will post electronic format copies on the Commission's Web site; the address for the Filer Manual is http://www.sec.gov/info/edgar.shtml. You may also obtain copies from Thomson Financial Inc, the paper and microfiche contractor for the Commission, at (800) 638-8241.

Since the Filer Manual relates solely to agency procedures or practice, publication for notice and comment is not required under the Administrative Procedure Act (APA). 8 It follows that the requirements of the Regulatory Flexibility Act   9 do not apply.

The effective date for the updated Filer Manual and the rule amendments is February 7, 2005. In accordance with the APA, 10 we find that there is good cause to establish an effective date less than 30 days after publication of these rules. The EDGAR system upgrade to Release 8.10 is scheduled to become available on February 7, 2005. The Commission believes that it is necessary to coordinate the effectiveness of the updated Filer Manual with the scheduled system upgrade.

We are adopting the amendments to Regulation S-T under Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933, 11 Sections 3, 12, 13, 14, 15, 23, and 35A of the Securities Exchange Act of 1934, 12 Section 20 of the Public Utility Holding Company Act of 1935, 13 Section 319 of the Trust Indenture Act of 1939, 14 and Sections 8, 30, 31, and 38 of the Investment Company Act of 1940. 15

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.

By letter dated March 25, 2004 (Administrative Record Number WV-1389), 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 Committee Substitute for House Bill 4193, which authorizes amendments to the West Virginia Surface Mining Reclamation Rules at CSR 38-2. Committee Substitute for House Bill 4193 passed the Legislature on March 12, 2004, and was signed by the Governor on April 5, 2004. West Virginia Code (W.Va. Code or WV Code) 64-3-1(g) specifically authorizes WVDEP to promulgate the revisions as legislative rules.

In its letter, the WVDEP stated that the rules at CSR 38-2 were amended to be consistent with the counterpart Federal regulations. In addition, the amendment adds new provisions concerning “Forestland” and “Wildlife” to ensure that reclamation techniques and husbandry practices that are conducive to productive forestlands and wildlife habitats are followed. The WVDEP also included in its submittal, a memorandum from the West Virginia State Forester in which the State Forester endorsed the proposed rules and also provided comments on them.

The WVDEP also submitted Committee Substitute for Senate Bill 616, which was adopted by the Legislature on March 21, 2004. The Bill increased the membership of the Environmental Protection Advisory Council and established a new Quality Assurance Compliance Advisory Committee. Because this Bill was vetoed by the Governor on April 6, 2004, it is not being considered in this rulemaking.

The amendment submitted by WVDEP includes amendments to CSR 38-2-24 concerning the exemption for coal extraction incidental to the removal of other minerals. However, none of these provisions at CSR 38-2-24, which the State is proposing to amend, were previously submitted to OSM for approval. Therefore, we included CSR 38-2-24 in its entirety in our proposed rule notice, and we requested public comment on all of Section 24 (Administrative Record Number WV-1390) (Finding 10 below).

We announced receipt of the proposed amendment in the May 12, 2004, Federal Register (69 FR 26340). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the proposed amendment (Administrative Record Number WV-1396). We did not hold a hearing or a meeting because no one requested one. The public comment period closed on June 11, 2004. We received comments from one individual and two Federal agencies.

We note that the proposed rules that we announced in the May 12, 2004, Federal Register differ in some respects from the final rules that are on file with the West Virginia Secretary of State. While these differences are minor and do not affect our findings below one way or the other, we recommend that the State correct these differences to avoid any confusion in the future.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment, except as discussed below. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes and are approved here without discussion.

This provision is amended by changing a term relating to the scale of the topographic map that must be submitted with the subsidence control plan. In the first sentence, the word “less” is deleted and replaced by the word “more.” In the last sentence, the word “less” is deleted and replaced by the word “larger.”

The revision of the scale term used in this provision is intended to adopt standard language concerning map scales. Concerning the map scale of 1″ = 1000′ or “larger,” the word “larger” is intended to indicate that an acceptable scale would also be, for example, 1″ = 750′ or 1″ = 500′. Such larger scales, though smaller in number, would allow a map to accurately show the location of small structures such as houses, churches, community buildings, etc.

We find that the amendment to the last sentence, where the word “less” is deleted and replaced by the word “larger,” is consistent with and no less effective than the Federal regulations at 30 CFR 784.20(a)(1) concerning the map to be submitted with a pre-subsidence survey and can be approved. The amendment to the first sentence, however, contains an inadvertent error. In the first sentence, the word “less” is deleted and replaced by the word “more.” It is our understanding that the word “more” is intended to be “larger,” and the inadvertent error will be corrected in the future. Our approval of the amendments to CSR 38-2-3.12.a.1 is based upon that understanding.

We note that the amendments to this paragraph satisfy an issue in a 30 CFR part 732 notification dated June 7, 1996, that we had previously sent the State (Administrative Record Number WV-1037(a)). The Federal regulations at 30 CFR 732.17(d) provide that OSM must notify the State of all changes in SMCRA and the Federal regulations that will require an amendment to the State program. Such letters sent by us are often referred to as “732 letters or notifications.” The part 732 letter issue that is being satisfied concerns the scale of the subsidence control plan map as required by the State at CSR 38-2-3.12.a.1.

This entire subsection is new. As we stated above at Section II, Submission of the Amendment, the State is adding new provisions concerning “Forestland” and “Wildlife” to ensure that reclamation techniques and husbandry practices that are conducive to productive forestlands and wildlife habitats are followed by coal mining operators. The WVDEP also included in its submittal, a memorandum from the West Virginia State Forester in which the State Forester endorsed the proposed rules and also provided comments on them.

Trees are a renewable resource, and we believe that reforestation is a good investment, both environmentally and economically. Environmentally, trees minimize soil erosion, remove carbon dioxide from the air, provide wildlife habitat and diverse plant species, and help conserve water resources. Economically, high quality timber can offer substantial revenue for landowners and job opportunities for local residents in terms of logging, furniture making, woodworking, etc. In addition, planting trees restores our forests, which are important recreational areas for hunting, hiking, camping and mountain biking.

For the past several years, OSM has been working with its partners in the coal mining States to identify and promote methods that would enhance postmining land use by planting more high-value hardwood trees on reclaimed coal mined lands and enhancing the survival and growth rates of those trees that are planted. To accomplish these goals, OSM conducted several outreach symposia and interactive forums with coal mining States, industry representatives, reclamation researchers and others to identify information on successful reforestation efforts and technologies. OSM has also sought to identify and remove specific impediments to tree planting and for promoting technologies with potential for enhancing reforestation efforts. Recently, to promote reforestation in the Appalachian Region, OSM and the States of Kentucky, Maryland, Ohio, Pennsylvania, Tennessee, Virginia and West Virginia have jointly started the Appalachian Regional Reforestation Initiative (ARRI) to accomplish the goals of reclaiming more active and abandoned mined lands with hardwood forests, and increasing the survival and growth rates of the planted trees.

The ARRI promotes the use of specific planting methods that increase the survival and growth rates of trees. Collectively, these methods are referred to as the forestry reclamation approach (FRA). The FRA methods focus on the following: (1) Creating a suitable rooting medium for good tree growth that is no less than four feet deep and comprised of topsoil, weathered sandstone and/or the best available material; (2) loosely grading the topsoil or topsoil substitutes to create a non-compacted growth medium; (3) use of native and non-competitive ground covers that are compatible with growing trees; (4) planting two types of trees—early succession species for wildlife and soil stability, and commercially valuable crop trees; and (5) using proper tree planting techniques. Over the past 20 years of Federal oversight, OSM has learned that soil compaction by heavy equipment during postmining reclamation is a primary factor that inhibits vigorous tree growth. Likewise, OSM has learned that competition with ground cover vegetation also seriously inhibits successful reforestation. The FRA methods identified above clearly focus on eliminating both of these impediments to successful reforestation.

West Virginia's proposed regulations at CSR 38-2-7.6 concerning forest land postmining land use (this Finding), and CSR 38-2-7.7 concerning wildlife postmining land use (Finding 3 below) incorporate the FRA methods identified above and are intended to promote vigorous hardwood forests, while providing for wildlife habitat. In this finding and in Finding 3 below, in addition to evaluating the proposed provisions for consistency with the Federal regulations, we will also review the proposed provisions in the light of the planting methods recommended under the FRA for promoting vigorous hardwood forests.

a. 7.6.a. This subsection provides as follows:

New CSR 38-2-7.6.a clarifies that the forest land provisions at CSR 38-2-7.6 apply only to mining operations on lands that will be returned to their approximate original contour (AOC). Other State forestry-related provisions apply to mining operations on lands that receive a variance from the requirements to return mined lands to AOC under CSR 38-2-14.12 and W.Va. Code 22-3-13(c). Specifically, CSR 38-2-7.4 provides the standards applicable to mountaintop removal mining operations with a variance from the requirement to return the land to AOC and that have a postmining land use of commercial forestry and forestry. We note that the proposed provision does not specifically provide that other applicable provisions of the approved surface mining program continue to apply. However, there is nothing in proposed subsection 7.6.a that supersedes or negates compliance with other applicable provisions such as with the general provisions concerning premining and postmining land use at CSR 38-2-7.1, the alternative postmining land use requirements at CSR 38-2-7.3, or with the bond release requirements at CSR 38-2-12.2. Therefore, it is our understanding that the other applicable provisions of the West Virginia program continue to apply to the extent they are consistent with promoting vigorous reforestation as stated above. While there is no specific Federal counterpart to proposed CSR 38-2-7.6.a, we find that this provision is not inconsistent with the Federal regulations at 30 CFR 780.23 concerning reclamation plans and postmining land use information and can be approved. Our approval of this provision is based upon our understanding noted above.

b. 7.6.b. Planting Plan. Subsection 7.6.b. contains requirements concerning the development, contents, and review of the planting plan. Subsection 7.6.b. contains the following requirements.

We note that proposed CSR 38-2-7.6.b.1.B.2. provides that the Secretary of WVDEP shall ensure that the planting plans submitted under CSR 38-2-7.6.b. comply with the requirements of this rule (CSR 38-2) and other provisions of the approved State surface mining program. That is, in addition to complying with the provisions of CSR 38-2-7.6 concerning forest land postmining land use, the applicant must also comply with the other provisions of the approved State surface mining program, such as CSR 38-2-9.3.a., which allows the planting plan to be amended or modified prior to implementation, and CSR 38-2-9.3.b., which requires the submission of a final planting report following Phase 1 bond reduction.

It is our understanding that the “forester employed [by] the Department of Environmental Protection” at proposed CSR 38-2-7.6.b.1.B.1 would only be a forester within that agency. The Federal regulations at 30 CFR 816.116(b)(3)(i) provide that minimum stocking and planting arrangements shall be specified by the regulatory authority on the basis of local and regional conditions and after consultation with and approval by the State agency responsible for the administration of forestry. Consultation and approval may occur on either a program wide or a permit-specific basis. Under the approved State program, consultation regarding stocking standards occurs on a program wide basis with assistance from the Division of Forestry on an as needed basis. A memorandum of understanding (MOU) dated June 4, 1998, currently exists between the Division of Forestry and the WVDEP. See Administrative Record Number WV-1109. It is our understanding that this MOU is being updated and the required consultation with the State agency responsible for the administration of forestry would continue to occur under this MOU (Administrative Record Number WV-1404). We note that this agreement is being updated to provide for future coordination in the development and approval of planting plans specified in this proposed provision and to ensure compliance with WV Code 30-19-1 et seq. , concerning Registered Foresters. Under the revised MOU, the Division of Forestry will provide WVDEP technical assistance upon request and assist State registered professional foresters in the development of those permit applications where the postmining land use includes forest land (CSR 38-2-9.3.g), commercial reforestation (CSR 38-2-9.3.h), commercial forestry (CSR 38-2-7.4), or forest land (proposed CSR 38-2-7.6).

There are no direct Federal counterparts to the proposed provisions at subsection 7.6.b concerning planting plan. However, we find that the proposed provisions at CSR 38-2-7.6.b. are not inconsistent with the Federal requirements at 30 CFR 780.18(b)(5) concerning revegetation plan, and we are approving these provisions based upon our understanding, as noted above. In the future, if the State fails to update the MOU or fails to continue the MOU in force, OSM may reconsider this decision and, if appropriate, require the State to amend the West Virginia program to add the specifics contained in the MOU, including the requirement to consult with the Division of Forestry.

c.7.6.c. Soil placement, Substitute material and Grading. This new provision provides as follows:

We find that proposed 7.6.c.1, which requires at least four feet of soil or soil substitutes to be redistributed in a uniform thickness, is consistent with and no less effective than the Federal regulations concerning redistribution of topsoil at 30 CFR 816.22(d) and can be approved. As we noted above in Finding 2.a., it is our understanding that the other applicable provisions of the West Virginia program, such as CSR 38-2-14.3.a concerning the removal and storage of topsoil, will continue to apply to the extent they are consistent with these provisions in promoting reestablishment of vigorous hardwood forests. Our approval of proposed 7.6.c.1 is based upon that understanding.

Proposed 7.6.c.2, concerning the demonstrations needed for the approval of topsoil substitutes, is consistent with and no less effective than 30 CFR 816.22(b) concerning soil substitutes and supplements and can be approved. We note that proposed 7.6.c.2 specifically requires compliance with the topsoil substitute requirements at CSR 38-2-14.3.c., which require a demonstration of the suitability of the substitutes for the approved postmining land use.

We find that proposed 7.6.c.3., which requires non-compaction of the replaced soil, is consistent with and no less effective than the Federal regulations at 30 CFR 816.22(d), concerning redistribution of soil and can be approved. 30 CFR 816.22(d) requires redistribution of soil in a manner which, at (i), is consistent with the approved postmining land use, and, at (ii), prevents excess compaction of the materials.

The proposed requirement for a static safety factor of 1.3 at 7.6.c.3 is consistent with and no less effective than the Federal regulations at 30 CFR 816.102(a)(3), which require the backfill to achieve a long-term slope stability factor of 1.3 and to prevent slides. The proposed authorization to allow organic debris to be left on the surface and in the soil is not inconsistent with the Federal regulations, so long as placement of the organic material is limited to the topsoil, or topsoil substitute, and this practice does not affect stability in accordance with the Federal regulations at 30 CFR 816.71(e)(1) and 816.102(a)(3). The emphasis of the State provisions toward minimizing compaction and inoculating the soil with organic materials is consistent with the needs of forestry and tree growth, and with the Federal soil redistribution requirements at 30 CFR 816.22(d). In addition, the proposed rule prohibits “final” grading and tracking on slopes of less than 30 percent or about 17 degrees. We note that the grading limitation on slopes of less than 30 percent at proposed 7.6.c.3 is restricted to “final” grading or tracking, and initial or subsequent grading will not be prohibited on any slopes, regardless of steepness. Furthermore, it is our understanding that if some areas with less than 30 percent slope require grading or tracking to ensure stability, minimize erosion, or to prevent slippage, the proposed rule would not preclude an operator from undertaking grading or tracking and normal husbandry practices as provided by CSR 38-2-11.7 and 14.15.a.1 and the Federal regulations at 30 CFR 816.102(a)(3) and 816.116(c)(4). Our approval of these provisions is based upon that understanding.

Proposed 7.6.c.4, provides for the repair of rills and gullies that are unstable and/or disrupt the postmining land use or vegetative cover or cause or contribute to a violation of water quality standards. The Federal regulations at 30 CFR 816.95(b) require that rills and gullies that either (1) disrupt the postmining land use or the reestablishment of the vegetative cover or (2) cause or contribute to the violation of water quality standards must be filled, regraded, or otherwise stabilized. We understand the amended State provision concerning repair of rills and gullies at CSR 38-2-7.6.c.4 to mean that a permittee is generally not authorized to repair rills and gullies, except those rills and gullies that are unstable and/or disrupt the approved postmining land use, the establishment of vegetative cover, or cause or contribute to a violation of water quality standards for the receiving stream. This provision is intended to eliminate the compaction of soils and the destruction of established vegetative cover that would normally take place during routine repair of rills and gullies. Such compaction can have a detrimental effect on tree growth. Therefore, we find the limitation on the repair of rills and gullies is intended to protect tree seedlings and other vegetative growth and help assure the success of the forest land postmining land use.

CSR 38-2-7.6.c.4 does not explicitly require the repair of rills and gullies that disrupt the approved postmining land use, the establishment of vegetative cover, or cause or contribute to a violation of water quality standards for the receiving stream. However, the proposed provision in no way prohibits the repair of such rills and gullies. Moreover, the approved State program already requires restoration of the premining land use, or establishment of an approved alternative postmining land use after mining (CSR 38-2-7.1.a. and 7.3, respectively), the establishment of vegetative cover (CSR 38-2-7.6.e.1), and compliance with applicable water quality standards (CSR 38-2-14.5.b). It necessarily follows from these provisions that rills and gullies that could prevent compliance with the above requirements must be filled, regraded, or otherwise stabilized. For this reason, we find that the proposed amendment at CSR 38-2-7.6.c.4, taken in concert with the above-referenced State regulatory requirements, does not render the program less effective than 30 CFR 816.95(b) and can be approved, so long as it is implemented in a manner consistent with that Federal provision and CSR 38-2-9.2.e. If, in future reviews, we should determine that West Virginia is implementing these provisions in a manner that is inconsistent with this finding, a further amendment may be required.

d. 7.6.d. Liming and Fertilizing. This new provision provides as follows:

There are no direct Federal counterparts to the specific liming and fertilizing rates proposed by West Virginia. We find, however, that the amendments do not render the West Virginia program less effective than the Federal requirements at 30 CFR 779.21 concerning soil resources information, 30 CFR 780.18 concerning reclamation plan general requirements, and 30 CFR 816.22 concerning topsoil and subsoil and can be approved.

e. 7.6.e. Revegetation. This new provision provides as follows:

There are no direct Federal counterpart regulations to the specific provisions of CSR 38-2-7.6.e.1 concerning mixes and seeding rates of temporary erosion control vegetative cover. In addition to being compatible with plant and animal species of the region, it is our understanding that the mixes, shrubs, tree seedlings and any alternatives will, as provided by subsections 9.2.a, b, c and h and 30 CFR 816.111(a) and (b), be compatible with the approved postmining land use, have the same seasonal characteristics of growth as the original vegetation, be capable of self regeneration and plant succession, and meet State and Federal seed, poisonous, and noxious plant and introduced species requirements. Our finding that the proposed State provisions are not inconsistent with the Federal requirements concerning revegetation at 30 CFR 816.111 and 816.116 is based upon that understanding and these provisions can be approved, except as noted below.

The proposed provision at CSR 38-2-7.6.e.1 provides that the “ground vegetation shall be capable of stabilizing the soil from excessive erosion.” That provision is less effective than the Federal regulations at 30 CFR 816.111(a)(4), which provides that the permittee shall establish a vegetative cover that is “[c]apable of stabilizing the soil surface from erosion.” As proposed, CSR 38-2-7.6.e.1 is less effective than 30 CFR 816.111(a)(4) because the proposed standard to stabilize the soil is modified by the word “excessive.” Therefore, we are not approving the word “excessive” in the phrase “capable of stabilizing the soil from excessive erosion” at CSR 38-2-7.6.e.1.

We find that the requirements concerning the selection of tree and shrub species at CSR 38-2-7.6.e.2 are consistent with the general Federal requirements concerning revegetation at 30 CFR 816.111 and can be approved. We also find that the proposed stocking density of trees at CSR 38-2-7.6.e.2.A and the stocking density of shrubs at CSR 38-2-7.6.e.2.B, which have been approved by the Division of Forestry, are consistent with and no less effective than the Federal requirements concerning revegetation standards for success at 30 CFR 816.116(b)(3) and can be approved.

f. 7.6.f. Standards for Success. This new provision provides as follows:

We find that the proposed success standards for revegetation at CSR 38-2-7.6.f. are consistent with and no less effective than the Federal standards for revegetation success of lands to be developed for fish and wildlife habitat, recreation, shelter belts, or forest products at 30 CFR 816.116(b)(3) and can be approved. We note that there is an apparent typographical error in paragraph 7.6.f.2. Immediately after providing that the minimum success standard shall be tree and shrub survival per acre, the provision states that the minimum standard shall be “450 trees per acre and a seventy percent (70%) ground cover * * *.” It is our understanding that the intended meaning of this provision is that the minimum success standard of tree and shrub survival per acre shall be 450 trees/shrubs per acre with a seventy percent (70%) ground cover, and that this apparent typographical error will be corrected in the future. Our finding that CSR 38-2-7.6.f. is consistent with and no less effective than the Federal standards at 30 CFR 816.116(b)(3) and can be approved is based upon that understanding.

a. 7.7.a. This subsection is new and provides as follows:

New subsection CSR 38-2-7.7.a provides that subsection CSR 38-2-7.7 applies only to surface coal mining operations where the land will be returned to AOC. In addition, the provision makes clear that plans submitted to comply with CSR 38-2-7.7 must also comply with the requirements of the other provisions of the approved State surface mining program. That is, in addition to complying with the provisions of CSR 38-2-7.7 concerning wildlife postmining land use, the applicant must also comply with the other provisions of the approved State surface mining program such as CSR 38-2-3.16 concerning fish and wildlife resources information, CSR 38-2-7.3 concerning alternative postmining land use criteria, or CSR 38-2-12.2 concerning bond release requirements. There is no specific Federal counterpart to CSR 38-2-7.7.a. However, we find that this provision is not inconsistent with the Federal regulations at 30 CFR 780.23 concerning reclamation plans and postmining land use information and can be approved.

b. 7.7.b. Planting Plan. Subdivision 7.7.b. contains requirements concerning the development, contents, and review of the planting plan. Subsection 7.7.b. contains the following requirements:

We note that proposed CSR 38-2-7.7.b.1 requires the development of each proposed planting plan by a wildlife biologist employed by West Virginia Division of Natural Resources and made a part of the permit application prior to approval by the Secretary of the WVDEP. The Federal regulations at 30 CFR 816.116(b)(3)(i) provide that minimum stocking and planting arrangements may be approved by the regulatory authority, after consultation with and approval by the State agencies responsible for the administration of forestry and wildlife programs. Consultation and approval may occur on either a program wide or a permit-specific basis. Under CSR 38-2-7.7.b.1, the approval of stocking and planting arrangements will be on a permit-specific basis. An MOU currently exists between the Division of Forestry and the WVDEP (see Finding 2.b above). In addition, a Memorandum of Agreement (MOA) dated September 16, 2003, currently exists between the Division of Natural Resources and the WVDEP (Administrative Record Number WV-1405). It is our understanding that the required consultation with the State agencies responsible for the administration of forestry and planting arrangements will continue to occur under these agreements.

There are no specific Federal counterparts to the remaining proposed provisions at subsection 7.7.b concerning planting plan. Nevertheless, we find that the proposed provisions at CSR 38-2-7.7.b. are not inconsistent with the Federal requirements at 30 CFR 780.18(b)(5) concerning revegetation plan and can be approved. However, our approval of CSR 38-2-7.7.b is based upon the understanding that the MOU between the Division of Forestry and the WVDEP and the MOA between the Division of Natural Resources and the WVDEP will continue to be in force.

c. Soil Placement, Substitute Material and Grading. This new provision provides as follows:

We find that proposed 7.7.c.1, which requires at least four feet of soil or soil substitutes to be redistributed in a uniform thickness, is consistent with and no less effective than the Federal regulations concerning redistribution of topsoil at 30 CFR 816.22(d) and can be approved. As we noted above in Finding 3.a., in addition to complying with the provisions of CSR 38-2-7.7, the applicant must also comply with the other provisions of the approved State program. Therefore, our approval of proposed 7.7.c.1 is based upon the understanding that the State's topsoil rules at CSR 38-2-14.3(a) and (b) regarding removal and redistribution will continue to apply in these situations.

Proposed 7.7.c.2, concerning the demonstrations needed for the approval of topsoil substitutes, is consistent with and no less effective than 30 CFR 816.22(b) concerning soil substitutes and supplements and can be approved. We note that proposed 7.7.c.2 specifically requires compliance with the topsoil substitute requirements at CSR 38-2-14.3.c., which requires a demonstration of the suitability of the substitutes for the approved postmining land use. We also note an apparent typographical error in proposed 7.7.c.2. The reference to the depth requirements of “7.6.c.1” should be to “7.7.c.1.” However, because CSR 38-2-7.6.c.1 and CSR 38-2-7.7.c.1 are substantively identical, the typographical error has no meaningful effect. Nevertheless, we recommend that the State correct it in the future.

We find that proposed 7.7.c.3., which requires non-compaction of the replaced soil, is consistent with and no less effective than the Federal regulations at 30 CFR 816.22(d), concerning redistribution of soil and can be approved. The regulations at 30 CFR 816.22(d) require redistribution of soil in a manner which, at (i), is consistent with the approved postmining land use, and, at (ii), prevents excess compaction of the materials.

The proposed requirement for a static safety factor of 1.3 at 7.7.c.3 is consistent with and no less effective than the Federal regulations at 30 CFR 816.102(a)(3), which require the backfill to achieve a long-term slope stability factor of 1.3 and to prevent slides. The proposed authorization to allow organic debris to be left on the surface and in the soil is not inconsistent with the Federal regulations, so long as the placement of organic material is limited to the topsoil, or topsoil substitute, and this practice does not affect stability in accordance with the Federal regulations at 30 CFR 816.71(e)(1) and 816.102(a)(3). The emphasis of the State provisions toward minimizing compaction and inoculating the soil with organic materials is consistent with the needs of forestry and tree growth, and with the Federal soil redistribution requirements at 30 CFR 816.22(d). In addition, the proposed rule prohibits final grading and tracking on slopes of less than 30 percent or about 17 degrees. We note that the grading limitation on slopes of less than 30 percent at proposed 7.7.c.3 is restricted to “final” grading or tracking, and initial or subsequent grading will not be prohibited on any slopes, regardless of steepness. Furthermore, it is our understanding that if some areas with less than 30 percent slope require final grading or tracking to ensure stability, minimize erosion, or to prevent slippage, the proposed rule would not preclude an operator from undertaking such activities and other normal husbandry practices as provided by CSR 38-2-11.7 and 14.15.a.1 and the Federal regulations at 30 CFR 816.102(a)(3) and 816.116(c)(4). Our approval of these provisions is based upon that understanding.

Proposed 7.7.c.4 provides for the repair of rills and gullies that are unstable and/or disrupt the postmining land use or vegetative cover or cause or contribute to a violation of water quality standards. The Federal regulations at 30 CFR 816.95(b) require that rills and gullies that either (1) disrupt the postmining land use or the reestablishment of the vegetative cover or (2) cause or contribute to the violation of water quality standards must be filled, regraded, or otherwise stabilized. We understand the amended State provision concerning repair of rills and gullies to mean that a permittee is generally not authorized to repair rills and gullies, except those rills and gullies that are unstable and/or disrupt the approved postmining land use, the establishment of vegetative cover, or cause or contribute to a violation of water quality standards for the receiving stream. This provision is intended to eliminate the compaction of soils and the destruction of established vegetative cover that would normally take place during routine repair of rills and gullies. Such compaction can have a detrimental effect on tree growth. Therefore, we find the limitation on the repair of rills and gullies is intended to protect tree seedlings and other vegetative growth and help assure the success of the forestry components of the wildlife postmining land use.

CSR 38-2-7.7.c.4 does not explicitly require the repair of rills and gullies that disrupt the approved postmining land use, the establishment of vegetative cover, or cause or contribute to a violation of water quality standards for the receiving stream. However, the proposed provision in no way prohibits the repair of such rills and gullies. Moreover, the approved State program already requires restoration of the premining land use, or establishment of an approved alternative postmining land use after mining, (CSR 38-2-7.1.a. and 7.3, respectively), the establishment of vegetative cover (CSR 38-2-7.7.e.1), and compliance with applicable water quality standards (CSR 38-2-14.5.b). It necessarily follows from these provisions that rills and gullies that could prevent compliance with the above requirements must be filled, regraded, or otherwise stabilized. For this reason, we find that the proposed amendment at CSR 38-2-7.7.c.4, taken in concert with the above-referenced State regulatory requirements, does not render the program less effective than 30 CFR 816.95(b) and can be approved, so long as it is implemented in a manner consistent with that Federal provision and CSR 38-2-9.2.e. If, in future reviews, we should determine that West Virginia is implementing these provisions in a manner that is inconsistent with this finding, a further amendment may be required.

d. 7.7.d. Liming and Fertilizing. This new provision provides as follows:

There are no direct Federal counterparts to the specific liming and fertilizing rates proposed by West Virginia. We find, however, that the proposed amendments do not render the West Virginia program less effective than the Federal requirements at 30 CFR 779.21 concerning soil resources information, 30 CFR 780.18 concerning reclamation plan general requirements, and 30 CFR 816.22 concerning topsoil and subsoil and can be approved.

e. 7.7.e. Revegetation. This new provision provides as follows:

There are no direct Federal counterpart regulations concerning the specific provisions of CSR 38-2-7.7.e.1 concerning mixes and seeding rates of temporary erosion control vegetative cover. In addition to being compatible with plant and animal species of the region, it is our understanding that the mixes, shrubs, tree seedlings and any alternatives will, as provided by subsections 9.2.a, b, c and h and 30 CFR 816.111(a) and (b), be compatible with the approved postmining land use, have the same seasonal characteristics of growth as the original vegetation, be capable of self regeneration and plant succession, and meet State and Federal seed, poisonous, and noxious plant and introduced species requirements. Our finding that the proposed State provisions are not inconsistent with the Federal requirements concerning revegetation at 30 CFR 816.111 and 816.116 is based upon that understanding and can be approved, except as noted below.

The proposed provision at CSR 38-2-7.7.e.1 provides that the “ground vegetation shall be capable of stabilizing the soil from excessive erosion.” That provision is less effective than the Federal regulations at 30 CFR 816/817.111(a)(4), which provides that the permittee shall establish a vegetative cover that is “[c]apable of stabilizing the soil surface from erosion.” As proposed, CSR 38-2-7.7.e.1 is less effective than 30 CFR 816/817.111(a)(4) because the proposed standard to stabilize the soil is modified by the word “excessive.” Therefore, we are not approving the word “excessive” in the phrase “capable of stabilizing the soil from excessive erosion” at CSR 38-2-7.7.e.1.

We find that the requirements concerning the selection of tree and shrub species at CSR 38-2-7.7.e.2 are consistent with the Federal requirements concerning revegetation, general requirements at 30 CFR 816.111 and can be approved, except as noted below. There is an apparent typographical error where the proposed provision requires compliance with 9.3.f when the proposed planting plan proposes a stocking rate of less than 450 trees or shrubs per acre. Given that the proposed requirements promote wildlife habitat and tree growth, the proposed citation should be to 9.3.g which provides revegetation standards for forestland and wildlife use. The citation to 9.3.f concerns revegetation success standards for grazingland, hayland and pastureland and, therefore, may not be appropriate for “wildlife” postmining land use. We find that the proposed stocking density of 450 woody plants at CSR 38-2-7.7.e.2 is consistent with and no less effective than the Federal requirements concerning revegetation standards for success at 30 CFR 816.116(b)(3) and can be approved. We are making this finding with the understanding that the citation of 9.3.f will be corrected to 9.3.g. Furthermore, any reduction in tree stocking rates beyond those set forth in 9.3.g and 9.3.h when the postmining land use includes forest land will require the approval of the Division of Forestry on a case-by-case basis.

As we noted above in Section II, the proposed rules differ from the final rules that are on file with the Secretary of State in some respects. The last sentence in proposed 7.7.e.2 provides, “In all instances, there shall be a minimum of four species of tree or shrub, to include at least two hard mast producing species.” The rules on file with the Secretary of State do not include the word “two” before hard mast producing species. We believe that this omission is most likely a typographical error, and that the State intends to require a minimum of two hard mast producing species. Nevertheless, because it constitutes a difference that would not further the objectives of the proposed rule, we recommend that this omission be corrected in the near future.

f. 7.7.f. Standards for Success. This new provision provides as follows:

We find that the proposed success standards for revegetation at CSR 38-2-7.7.f. are consistent with and no less effective than the Federal standards for revegetation success of lands to be developed for fish and wildlife habitat, recreation, shelter belts, or forest products at 30 CFR 816.116(b)(3) and can be approved. We note that there is an apparent typographical error in the provision at CSR 38-2-7.7.f.2. CSR 38-2-7.7.f.1 provides that the success of vegetation shall be determined on the basis of tree and shrub survival and ground cover. The proposed provision at CSR 38-2-7.7.f.2 lacks a reference to “shrubs” after the standard of “450 trees per acre.” The standard should be “450 trees/shrubs per acre with a 70 percent ground cover.” It is our understanding that CSR 38-2-7.7.f. applies to trees and shrubs, and therefore, the “450” standard applies to both trees and shrubs. Our finding that CSR 38-2-7.7.f is consistent with and no less effective than the Federal standards at 30 CFR 816.116(b)(3) and can be approved is based upon that understanding.

This provision is amended by adding a sentence in the second paragraph that provides as follows:

We find that the new language is consistent with and no less effective than the Federal regulations at 30 CFR 816.116(b)(3)(i), concerning standards for revegetation success of wildlife habitat, and can be approved. The Federal provision at 30 CFR 816.116(b)(3)(i) provides that minimum stocking and planting arrangements shall be specified by the regulatory authority after consultation with and approval by the State agencies responsible for the administration of forestry and wildlife programs.

As discussed in Finding 2.b, an MOU currently exists between the Division of Forestry and the WVDEP. In addition, as discussed in Finding 3.b, an MOA currently exists between the Division of Natural Resources and WVDEP. Because the tree and shrub stocking and planting arrangement requirements at CSR 38-2-7.6.f.2, 7.7.f.2, and 9.3.g are identical (450 trees/shrubs) as is the ground cover standard (70 percent), it is our understanding that both agreements could apply in all three cases and would require a planting plan to be developed by a wildlife biologist employed by the Division of Natural Resources when wildlife use is to be the postmining land use. However, we should note that both agreements may need to be updated to provide for future coordination in the approval of planting plans involving forest land and/or wildlife habitat.

We note that the amendment to this paragraph satisfies an item in a 30 CFR part 732 notification dated March 6, 1990, that we had previously sent the State (Administrative Record Number WV-834). The Federal regulations at 30 CFR 732.17(d) provide that OSM must notify the State of all changes in SMCRA and the Federal regulations that will require an amendment to the State program. Such letters sent by us are often referred to as “732 letters or notifications.” The issue that is satisfied requires minimum stocking and planting arrangements to be specified by the regulatory authority after consultation with and approval by the State agencies responsible for the administration of forestry and wildlife programs. With this action, all issues in our March 6, 1990, part 732 notification have been satisfied.

The first sentence of this paragraph is amended by deleting the partial citation “(c)(2),” and adding the words “and this rule” immediately following the amended citation. As amended, the sentence provides as follows:

The proposed rule provides for an AOC waiver pursuant to WV Code 22-3-13 and this rule (CSR 38-2). The revision clarifies when an AOC variance can be granted. In addition to the mountaintop removal AOC variance provision at WV Code 22-3-13(c)(2), there is the steep slope AOC variance provision at WV Code 22-2-13(e), and the AOC variance provisions for thin or thick overburden at WV Code 22-3-13(b). We find that the proposed revision, which includes a citation to all AOC variances authorized under the approved State program, does not render the West Virginia program less stringent than Section 515 of SMCRA nor less effective than the Federal regulations and can be approved.

This paragraph is amended by adding a sentence, which provides as follows:

Furthermore, the amount of bond for the operation shall be based on the maximum amount per acre specified in WV Code 22-3-12(b)(1).

In a December 3, 2002, Federal Register notice (67 FR 71832), we deferred rendering a decision on an earlier proposal by WVDEP to delete the language quoted above. We deferred our decision because the deletion of the requirement was an example of an action that could adversely affect the State's alternative bonding system (ABS) and such a change needed to be reviewed by the State's Special Reclamation Fund Advisory Council. During the Interim Hearing of August 22, 2004, of the Joint State Judiciary and Economic Development Legislative Committees, the Advisory Council warned that the State's ABS still has insufficient revenue to meet its obligations. The proposed retention of the language should help to ensure that the State's ABS will generate sufficient revenue to complete reclamation of bond forfeiture sites, including those with AOC variances. Therefore, we are approving the amendment. For more information, see the December 3, 2002, Federal Register , Finding 12 (67 FR 71832, 71836-71837).

This provision is new and provides as follows.

The proposed revision is in response to our 30 CFR part 732 notification dated July 22, 1997 (Administrative Record Number WV-1071). We find the proposed provisions at CSR 38-2-20.1.a.6 to be substantively identical to the Federal regulations at 30 CFR 840.11(h), except as described below, and can be approved.

As we noted above in Section II, the proposed State rules differ from the final rules that are on file with the Secretary of State in some respects. The first sentence in proposed 20.1.a.6 provides, “When a permit has been revoked and is not under a reclamation contract, in lieu of the inspection frequency established in paragraphs 20.1.a.1 and 20.1.a.2 of this subsection, the Secretary shall inspect each revoked site on a set frequency commensurate with the public health and safety and environmental consideration present at each specific site, but in no case shall the inspection frequency be set at less than one complete inspection per calendar year.” The rule summary that was filed with us and the rules on file with the Secretary of State do not include the words “and is not under a reclamation contract” after the word revoked. However, this phrase does appear in the proposed State rules that were submitted to us for approval. While the presence or absence of the phrase “and is not under a reclamation contract” does not affect our decision concerning CSR 38-2-20.1.a.6, we recommend that the WVDEP resolve this apparent discrepancy for the clarity of the West Virginia program. Because the phrase quoted above is absent from the rule summary and the final rules which are on file with the Secretary of State, we have advised the State that the quoted language will not be included in our approval of CSR 38-2-20.1.a.6 (Administrative Record Number WV-1406).

The proposed rules at CSR 38-2-20.1.a.6.F, concerning written findings, provide for the review of the complete and partial inspection report record for the site during “at least two consecutive years.” The State provision differs slightly from the counterpart Federal requirement, which provides for such review of the record for the site during “at least the last two consecutive years.” The State provision at CSR 38-2-20.1.a.6.F lacks the requirement that the review of the inspection record must be for at least “the last” two consecutive years. However, in accordance with its policy dated November 3, 2004, the State will consider inspection records for at least the last two consecutive years when establishing the inspection frequency for a bond forfeiture site (Administrative Record Number WV-1409).

The proposed rule does not include counterparts to the Federal regulations at 30 CFR 840.11(g)(1) and (g)(3). Subdivision (g) provides that “abandoned site” means a surface coal mining and reclamation operation for which the regulatory authority has found in writing that, at (g)(1), all surface and underground coal mining and reclamation activities at the site have ceased. Subdivision (g)(3) requires the regulatory authority to take appropriate measures to preclude a permittee, and owners and controllers of the permittee, with a revoked permit from receiving future permits, and to initiate alternative enforcement action to ensure abatement of existing violations at bond forfeiture sites. The State's approved program authorizes WVDEP to take such action, but the proposed State rules do not specifically require it. However, the WVDEP's policy dated November 3, 2004, addresses these concerns and provides the following:

Unlike the Federal rules, West Virginia's proposed rules and policy do not provide for reduced inspection frequency at abandoned sites. West Virginia does not reference its show cause procedures at WV Code 22-3-17(b) in its policy, because sites with revoked permits have already been subjected to the State's show cause process. In addition, abandoned sites for which the permits have not been revoked will still be inspected in accordance with CSR 38-2-20.1.a.1 and 38-2-20.1.a.2.

Therefore, we find that the State's proposed inspection frequency requirements, together with the implementation of the policy as described above, are no less effective than the Federal requirements at 30 CFR 840.11(g) and (h) and can be approved. Furthermore, the proposed revision and the policy mentioned above satisfy this issue as described in our 30 CFR part 732 notification dated July 22, 1997.

This provision is amended in the second sentence by adding the words “hauled or conveyed and” immediately following the words “mine refuse shall be.” As amended, the sentence provides that coal mine refuse shall be hauled or conveyed and placed in a controlled manner to comply with the performance standards at CSR 38-2-22.5.a.1. through 22.5.a.5. We find that by adding the words “hauled or conveyed,” CSR 38-2-22.5.a is substantively identical to the Federal regulations at 30 CFR 816/817.81(a) and, therefore, the amendment can be approved. We note that this change is in response to and satisfies an item in OSM's 30 CFR part 732 notification to the State of July 22, 1997 (Administrative Record Number WV-1071).

This section is deleted in its entirety. The remaining sections are renumbered accordingly. This provision allowed special authorizations for coal extraction as an incidental part of the development of land for commercial, residential, industrial, or civic use. The deletion of this section by the State is in response to our disapproval of Section 23 at 30 CFR 948.12(a)(4) as discussed in the May 5, 2000, and March 4, 2003, Federal Register notices and as required by the required program amendment codified in the Federal regulations at 30 CFR 948.16(oooo) (65 FR 26133 and 68 FR 10719, respectively). The deletion of the requirements at Section 23 renders the State's rules no less effective than the Federal regulations and can be approved. This approval resolves the required program amendment at 30 CFR 948.16(oooo), which can be removed.

This section is new and provides as follows:

The proposed revisions are in response to our 30 CFR part 732 notification dated March 6, 1990 (Administrative Record Number WV-834). Except as noted below, we find that the proposed amendments at CSR 38-2-24, concerning an exemption for coal extraction incidental to extraction of other minerals, are substantively identical to the counterpart Federal regulations at 30 CFR part 702 and can be approved.

CSR 38-2-24.2.c. The State provides that a request for an exemption shall be made part of a quarrying application and shall at a minimum include “[e]stimates of annual production of coal and the other minerals over the anticipated life of the operation.” The counterpart Federal regulations at 30 CFR 702.12(c) provide that, at a minimum, an application shall include estimates of annual production of coal and the other minerals within “each mining area” over the anticipated life of the mining operation. The proposed State provision lacks a counterpart to the Federal phrase “each mining area.”

The Federal regulations at 30 CFR 702.5(d) define mining area to mean an individual excavation site or pit from which coal, other minerals and overburden are removed. The intended purpose of the term “mining area” is discussed in the December 20, 1989, Federal Register notice in which the Federal regulations at 30 CFR part 702 were announced (54 FR 52092, 52096). In that notice, OSM stated that the primary purpose for the definition of mining area being limited to an individual excavation site or pit is to preclude an operator from averaging mineral tonnages from different locations to gain an unwarranted exemption from the Act. The definition also prohibits an operator from claiming an exemption by combining production from distinct noncoal and coal operations. Each excavation site or pit must individually qualify for the exemption in accordance with the requirements for exemption under 30 CFR 702.14. OSM further stated that it recognizes that a single excavation site or pit may, depending on its size, include a number of individual excavation activities. In this context, OSM considers a mining area to include the excavation activities occurring within a single excavation site or pit.

It is our understanding that quarries within West Virginia can be typically characterized as single excavations that may, depending on their size, include a number of individual excavation activities. For this reason, we find that proposed CSR 38-2-24.2.c does not render the West Virginia program less effective than the Federal regulations at 30 CFR 702.5(d) and can be approved. Our approval of this provision is based upon that understanding. If the State fails to implement this provision in a manner consistent with our understanding described above, OSM may require the State to amend the West Virginia program to require that an application shall include estimates of annual production of coal and the other minerals within “each mining area” over the anticipated life of the mining operation.

CSR 38-2-24.2.d and 38-2-24.2.g. The Federal regulations at 30 CFR 702.12(h) provide that an application for an exemption shall include, at a minimum, an estimate to the nearest acre of the number of acres that will compose the mining area over the anticipated life of the mining operation. While the proposed rules at CSR 38-2-24 do not contain a specific counterpart to this Federal requirement, acreage identification information is indirectly provided by two State requirements. Proposed CSR 38-2-24.2.d provides that a request for an exemption shall include, at a minimum, a reasonable estimate of the number of acres of coal that will be mined. In addition, proposed CSR 38-2-24.2.g provides that a request for an exemption shall include at a minimum a map of appropriate scale which clearly identifies the coal extraction area versus the quarrying area. We find that the information provided by an applicant for an exemption under proposed CSR 38-2-24.2.d and CSR 38-2-24.2.g renders the proposed amendments no less effective than the Federal regulations at 30 CFR 702.12(h).

CSR 38-2-24.2.e.4. This proposed provision provides that the newspaper notice published to inform the public of the application for an exemption must contain a narrative description clearly describing the location of the quarrying operation. This requirement is substantively identical to the counterpart Federal provision at 30 CFR 702.12(i), except that the State provision does not provide for a description of the proposed operation as does 30 CFR 702.12(i). We find that this omission does not render the State provision less effective because that information is available to the public via the quarry identification number that is required by proposed CSR 38-2-24.2.e.1. Under the proposed State rules, only quarries are eligible to obtain an exemption under CSR 38-2-24, and the descriptive information about those quarries is available to the public via the quarry number and the narrative describing the location of such operations. Therefore, we find that the lack of a specific State counterpart to 30 CFR 702.12(i) concerning a description of the proposed operation does not render the provision less effective than 30 CFR 702.12(i).

CSR 38-2-24.2.f.2. The Federal regulations at 30 CFR 702.12(j) provide that an application for an exemption shall include, at a minimum, the relative position and thickness of any material not classified as “other minerals” that will also be extracted during the conduct of mining activities. There is no specific State counterpart to this Federal provision. However, the information concerning “other materials” not classified as “other minerals” that will also be extracted during the mining activities is required by the provision at CSR 38-2-24.2.f.2. The State provision provides that an application for an exemption shall include at a minimum the nature and depth of the various strata or overburden including geologic formation names and/or geologic members. This information would include, therefore, the identification of the relative position and thickness of the coal, “other minerals” to be mined and the “other materials” not classified as “other minerals” that will also be extracted during the mining process. Therefore, we find that proposed CSR 38-2-24.2.f.2 renders the West Virginia program no less effective than the Federal regulations at 30 CFR 702.12(j).

CSR 38-2-24.6.c. We note that proposed CSR 38-2-24.6.c, concerning notification of the operator and commenter(s) of the WVDEP's determination to revoke or not revoke an exemption, uses the term “commenter(s)” whereas the counterpart Federal provision at 30 CFR 702.17(c)(1) uses the term “intervenors.” Under the West Virginia program, “commenter(s)” have the same rights as “intervenors.” Therefore, we find that the term “commenter(s)” at proposed CSR 38-2-24.6.c does not render that provision less effective than the Federal regulations at 30 CFR 702.17(c)(1).

CSR 38-2-24.7.a and 38-2-24.7.b. The proposed provisions at CSR 38-2-24 lack counterparts to the Federal definitions of “cumulative measurement period” at 30 CFR 702.5(a), “cumulative production” at 30 CFR 702.5(b), and “cumulative revenue” at 30 CFR 702.5(c). The Federal term “cumulative measurement period” means the period of time over which both cumulative production and cumulative revenue are measured. The Federal definition also provides criteria to determine the beginning of the cumulative measurement period, and for determining the date of annual reporting. West Virginia does not propose to use “cumulative measurement period,” “cumulative production” or “cumulative revenue” to determine eligibility for the exemption.

Under the proposed rules at CSR 38-2-24.7.a and 24.7.b, West Virginia is adopting quarterly reporting of certain information and annual reporting at the end of each calendar year, respectively. All of the data required to be reported under the Federal regulations at 30 CFR part 702 are required by the proposed State provisions, except the reporting of “cumulative production” and “cumulative revenue” throughout the “cumulative measurement period.”

Under the Federal definition of “cumulative measurement period” at 30 CFR 702.5(a), both production and revenue data would be recorded from the beginning of the “cumulative measurement period” to the present. These cumulative data would be used to determine eligibility for initial approval of the exemption and for continued approval of the exemption. OSM explained the purpose of the “cumulative measurement period” in the preamble to the Federal Register notice in which OSM approved the regulations at 30 CFR part 702. OSM stated that production rates of coal and other minerals are usually not consistent over the life of the mining operation. In some years, a relatively large amount of coal may be produced; in other years, coal production may be small or nonexistent. “To avoid making such operations become subject to and not subject to the jurisdiction of the Act, as may occur under the 12 consecutive month test, * * * OSM is adopting a rule that measures production, adjusted for legitimate stockpiling, and revenue on a cumulative basis” (December 20, 1989; 54 FR 52092, 52095-6). West Virginia is proposing not to adopt the “cumulative measurement period” standard but, rather, will assess initial and continued eligibility for this exemption using data on an annual basis.

West Virginia has chosen not to adopt the “cumulative measurement period” and therefore does not allow for the possibility of such operations becoming subject to and not subject to the jurisdiction of the Act, as may occur if data are assessed only on an annual basis. We find that while the State's decision not to use the “cumulative measurement period” eliminates the flexibility afforded by the Federal cumulative measurement provisions, that decision does not eliminate the assurance that the tonnage or revenue derived from coal mined under an exemption in West Virginia will not exceed 16 2/3 percent of the total coal and other minerals mined as required by the Federal provisions. Furthermore, as provided by 24.7.a.2 and 24.7.b.2, a person receiving the exemption shall file a quarterly production report with the WVDEP no later than 30 days after the end of each quarter and an annual production report within 30 days after the end of each “calendar” year, respectively.

As we noted above in Section II, the proposed rules differ from the final rules that are on file with the Secretary of State in some respects. The word “calendar” has been deleted at 24.7.b.2 as shown above in the rules that are on file with the Secretary of State. Nevertheless, we find this omission to be non-substantive, and the intent of this provision remains substantially the same. Therefore, we find that CSR 38-2-24 is no less effective than the Federal regulations at 30 CFR part 702 and can be approved. We should note that the implementation of the proposed provisions at CSR 38-2-24 will require the WVDEP to conduct various financial accounting and auditing activities to assess initial and continued eligibility of operations under this exemption. OSM is available to assist the WVDEP by providing training in the monitoring and auditing of these kinds of operations.

The State amendments at CSR 38-2-24 concerning exemption for coal extraction incidental to extraction of other minerals do not contain counterparts to all the Federal provisions at 30 CFR part 702. Each instance in which the State lacks a specific Federal counterpart is discussed below.

CSR 38-2-24 has no counterpart to the Federal regulations at 30 CFR 702.12(o) concerning operations having extracted coal or other minerals prior to filing an application for an exemption. It is our understanding that West Virginia does not currently authorize coal removal for quarry operations. In addition, under the proposed amendments, quarry operations must obtain an exemption prior to the removal of coal. Therefore, we find that the lack of a counterpart to 30 CFR 702.12(o) does not render the West Virginia program less effective than the Federal regulations at 30 CFR part 702.

CSR 38-2-24 has no counterpart to the Federal regulations at 30 CFR 702.15(c) concerning conducting operations in accordance with the approved application or when authorized to extract coal under 30 CFR 702.11(b) or 702.11(e)(3) prior to submittal or approval of an exemption application in accordance with the provisions at CSR 38-2-24. We find that the lack of a counterpart to 30 CFR 702.15(c) does not render the proposed rules less effective than the Federal regulations for the following reasons. The Federal regulations at 30 CFR 702.11(b) concern existing operations that have commenced coal extraction prior to the effective date of the proposed State regulations. It is our understanding that West Virginia does not currently authorize coal removal for quarry operations, and under the proposed amendments, quarry operations must obtain an exemption prior to the removal of coal. Therefore, the West Virginia program does not need a counterpart to the Federal regulations at 30 CFR 702.11(b).

The Federal regulations at 30 CFR 702.11(e)(3) concern coal removal by an applicant if the regulatory authority fails to provide the applicant with a determination within the time specified, unless the regulatory authority issues an interim finding that the applicant may not begin coal extraction. The State's counterpart to 30 CFR 702.11(e)(3) providing for an interim finding is at CSR 38-2-24.1, and is no less effective than 30 CFR 702.11(e)(3).

As we noted above, the State lacks a counterpart to the specific requirement at 30 CFR 702.15(c), which provides that a person conducting activities under an exemption shall conduct operations in accordance with the approved application. Although CSR 38-2-24 does not contain this specific provision, we believe that it is only logical that the proposed State rules implicitly require that an operator who has applied for and received an exemption under the proposed rules at CSR 38-2-24 or has applied for an exemption and more than 90 days has passed under CSR 38-2-24.1, shall conduct operations in accordance with the approved or pending application. It is also our understanding that under the proposed rules at CSR 38-2-24 an operator conducting activities to be covered by an exemption under that section will conduct such operations in accordance with CSR 38-2-24. Our finding that CSR 38-2-24 is not rendered less effective than the Federal regulations at 30 CFR part 702.15(c) is based upon our understandings discussed above. If, in future reviews, we should determine that West Virginia is implementing these provisions in a manner that is inconsistent with this finding, a further amendment may be required.

CSR 38-2-24 has no counterparts to the Federal definitions of “annual production” and “annual revenue” at 30 CFR 702.5(a) and (b), respectively. However, the proposed rules clearly require reporting starting with application approval, at the end of each calendar quarter pursuant to CSR 38-2-24.7.a.1, and at the end of each calendar year pursuant to CSR 38-2-24.7.b.1. Therefore, data will be collected commencing at application approval, and it will be reported both on a quarterly and annual basis. It is our understanding that the State will have available all the data it needs to accurately determine whether an exemption shall be continued or revoked. Therefore, we find that CSR 38-2-24 is not rendered less effective than the Federal regulations due to not having explicit definitions of “annual production” and “annual revenue.”

On May 12, 2004, we asked for public comments on the amendment (Administrative Record Number WV-1396). One person responded on three occasions (Administrative Record Numbers WV-1395, WV-1399 and WV-1407).

The commenter criticized the 1872 Mining Law and stated that it desperately needs changing (Administrative Record Number WV-1407). One of the primary purposes of this law is to promote mineral exploration and development on Federal lands in the western United States. The commenter stated that it is time that strong State regulations are put in place to stop the 1872 law from being allowed to harm people and the environment in this country today. In response, we note that coal mining operations in West Virginia, and all other States as well, are not regulated by the 1872 General Mining law per se, but are regulated under SMCRA, a Federal law that was passed in 1977. Under SMCRA, individual States are authorized to establish and implement their own surface coal mining and reclamation programs if those programs are deemed to be no less stringent than SMCRA and no less effective than the Federal regulations that implement SMCRA. West Virginia administers its own surface coal mining regulatory program that was approved by the Secretary of the Department of the Interior in 1981.

Under SMCRA, individual states with an approved surface coal mining regulatory program may amend their programs by sending to OSM copies of the State's proposed statutory and/or regulatory changes for review and approval by OSM. If OSM approves those amendments, they will become part of the approved State regulatory program. The amendments that we are approving in this notice today were submitted by the State, in accordance with applicable Federal regulations, for our approval prior to being added to the State's approved surface coal mining regulatory program. When we approve an amendment to a State's approved coal mining regulatory program, it is our judgment that the proposed amendments are no less stringent than SMCRA and no less effective than the counterpart Federal regulations at 30 CFR part 700 to end.

The commenter also stated that an environmental performance bond of at least $25 million should be placed with the State before any work starts which guarantees environmental clean up (Administrative Record Number WV-1399). We believe this comment may address the State's amendment to CSR 38-2-14.15.g, which increases the bond amount per acre for operations seeking a variance under CSR 38-2-14.15.g, to the maximum amount specified at W. Va. Code 22-3-12(b)(1) ($5,000 per acre). Under the Federal regulations at 30 CFR 800.14(b), the amount of a performance bond must be sufficient to assure the completion of the reclamation plan if the work has to be performed by the regulatory authority in the event of bond forfeiture, and in no case less than $10 thousand for the entire area under one permit. Under the Federal regulations, therefore, the performance bond amount is not based upon a fixed bond amount, but rather it is based upon the acreage of the proposed permit and the estimated cost of completing the reclamation plan if the work has to be performed by the regulatory authority in the event of bond forfeiture. Under the State's proposed revision at CSR 38-2-14.15.g, whenever a variance is sought under CSR 38-2-14.15.g, the site-specific bond amount per acre must be the maximum allowed under W. Va. Code 22-3-12(b)(1). This increase, while it may not result in a $25 million total bond for any specific permit, will increase the bond monies available for reclamation on all permits requesting a variance under CSR 38-2-14.15.g. As we stated above at Finding 6, this proposed requirement would also help assure that the State's alternative bonding system will generate sufficient revenue to complete reclamation of bond forfeiture sites, including those with AOC variances. Therefore, we are approving the proposed amendment to CSR 38-2-14.15.g.

The commenter provided several general statements disapproving of the way surface coal mining activities, including mountaintop removal mining operations, are being regulated within the State and by OSM (Administrative Record Numbers WV-1395, WV-1399, and WV-1407). The commenter stated a desire to protect trees, birds, wildlife and earth from mining, such as from flood damage and mountaintop removal mining, that the commenter stated is taking place today. The commenter stated that the postmining land must be left clean of toxins and residue. As we noted above, surface coal mining and reclamation activities in West Virginia are regulated under an approved State program that has been found to be no less stringent than SMCRA. The proposed State provisions at CSR 38-2-7.6 concerning forest land postmining land use and CSR 38-2-7.7 concerning wildlife postmining land use were submitted by West Virginia to ensure that reclamation techniques and husbandry practices that promote productive forestlands and wildlife habitats are followed by surface coal mining operations within the State. We believe that these provisions, once implemented, will do much to enhance reclaimed mine lands in West Virginia and to quell the commenter's concerns.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the West Virginia program (Administrative Record Number WV-1391). We received comments from the U.S. Department of Labor, Mine Safety and Health Administration (MSHA). On May 15, 2004, MSHA stated that it found no changes or issues that impact upon coal miners' health and safety (Administrative Record Number WV-1398).

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

By letter dated April 20, 2004, we requested comments and the concurrence from EPA on the State's program amendments (Administrative Record Number WV-1392). EPA responded by letter dated July 28, 2004, and stated that it had reviewed the revisions and determined that there are no apparent inconsistencies with the Clean Water Act or other statutes and regulations under the EPA's jurisdiction (Administrative Record Number WV-1402).

Based on the above findings, we are approving, except as noted below, the program amendment West Virginia sent us on March 25, 2004. In addition, the required program amendment codified at 30 CFR 948.16(oooo) is satisfied and can be removed, and the disapproval set forth at 30 CFR 948.12(a)(4) has been resolved.

At CSR 38-2-7.6.e.1, we are not approving the word “excessive.”

At CSR 38-2-7.7.e.1, we are not approving the word “excessive.”

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 final 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.

The provisions in the rule based on counterpart Federal regulations do not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations. The revisions made at the initiative of the State that do not have Federal counterparts have also been reviewed and a determination made that they do not have takings implications. This determination is based on the fact that the provisions are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.

This rule is exempt from review by the Office of Management and Budget under Executive Order 12866.

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.

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.

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 our decision is on a State regulatory program and does not involve Federal regulations involving Indian lands.

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.

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)).

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. ).

The Department of the Interior certifies that a portion of the provisions in 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. ) because they are 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. The Department of the Interior also certifies that the provisions in this rule that are not based upon counterpart Federal regulations 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. ). This determination is based on the fact that the provisions are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.

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 fact that a portion of the State provisions are based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. For the portion of the State provisions that is not based upon counterpart Federal regulations, this determination is based upon the fact that the State provisions are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.

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 fact that a portion of the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. For the portion of the State provisions that is not based upon counterpart Federal regulations, this determination is based upon the fact that the State provisions are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.

Throughout this document, wherever “we,” “us” or “our” is used, we mean EPA. Information is organized as follows:

Under the authority of the Federal Clean Air Act (Clean Air Act or the Act) EPA is taking final action to approve the Limited Maintenance Plan (LMP) for the Yakima County PM-10 Nonattainment Area (Yakima NAA) in the State of Washington and to redesignate the area to attainment for PM-10. The action to redesignate the Yakima NAA to attainment is based on valid monitoring data and analysis of ambient air quality made in the demonstration that accompanies the LMP. EPA believes the area will continue to meet the National Ambient Air Quality Standards (NAAQS or standards) for PM-10 for at least 10 years beyond this redesignation, as required by the Act. In addition, EPA believes that the area will continue to meet the Limited Maintenance Plan design value criteria outlined in the LMP policy  1 . A detailed description of our proposed action to approve the Yakima NAA LMP and redesignation request was published in a proposed rulemaking in the Federal Register on November 29, 2004. See 69 FR 69342.

EPA provided a 30-day review and comment period and solicited comments on our proposal published in the November 29, 2004, Federal Register. See 69 FR 69342. No comments were received for the proposed rulemaking. EPA is now taking final action on the SIP revision consistent with the published proposal.

EPA is taking final action to approve the Yakima County PM-10 Limited Maintenance Plan and to redesignate the Yakima County nonattainment area to attainment for PM-10. Washington has demonstrated compliance with the requirements of section 107(d)(3)(E) based on information provided by the Washington Department of Ecology and contained in the Washington SIP and Yakima NAA PM-10 Limited Maintenance Plan.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator 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. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 10, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

The Federal Communications Commission is modifying § 0.467(a) of the Commission's rules. This rule pertains to the charges for searching and reviewing records requested under the FOIA. The FOIA requires federal agencies to establish a schedule of fees for the processing of requests for agency records in accordance with fee guidelines issued by the Office of Management and Budget (OMB). In 1987, OMB issued its Uniform Freedom of Information Act Fee Schedule and Guidelines. However, because the FOIA requires that each agency's fees be based upon its direct costs of providing FOIA services, OMB did not provide a unitary, government-wide schedule of fees. The Commission based its FOIA Fee Schedule on the grade level of the employee who processes the request. Thus, the Fee Schedule was computed at a Step 5 of each grade level based on the General Schedule effective January 1987 (including 20 percent for personnel benefits). The Commission's rules provide that the Fee Schedule will be modified periodically to correspond with modifications in the rate of pay approved by Congress. See 47 CFR 0.467(a)(1) note.

In an Order adopted on January 14, 2005 and released on January 24, 2005 (DA 05-43), the Managing Director revised the schedule of fees set forth in 47 CFR 0.467 for the recovery of the full, allowable direct costs of searching for and reviewing agency records requested pursuant to the FOIA and the Commission's rules, 47 CFR 0.460, 0.461. The revisions correspond to modifications in the rate of pay, which was approved by Congress.

These modifications to the Fee Schedule do not require notice and comment because they merely update the Fee Schedule to correspond to modifications in rates of pay, as required under the current rules. The Commission will not send a copy of this Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the rules are a matter of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.

Accordingly, pursuant to the authority contained in § 0.231(b) of the Commission's rules, 47 CFR 0.231 (b), it is hereby ordered, that, effective on February 8, 2005, the Fee Schedule contained in § 0.467 of the Commission's rules, 47 CFR 0.467, is amended, as described herein.

This is a synopsis of the Commission's document in MB Docket No. 05-28, DA 05-169, released January 25, 2005. The complete text of the document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554, and may also be purchased from the Commission's copy contractor, BCPI, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. via their Web site, http://www.bcpi.com, or call 1-800-378-3160.

1. On December 8, 2004, the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA) was enacted. (The Satellite Home Viewer Extension and Reauthorization Act, Pub. L. 108-447; 118 Stat. 2809 (2004). SHVERA was enacted as Title IX of the Consolidated Appropriations Act, 2005.) Section 208 of SHVERA requires the Commission to conduct an inquiry on the impact of specific provisions of the Communications Act of 1934, as amended, and Commission rules on competition in the multichannel video programming distribution (MVPD) market. The Commission is required to submit a report to Congress on the results of its inquiry no later than nine months after SHVERA's enactment ( i.e. , September 8, 2005).

2. By this document, the Media Bureau (Bureau) initiates the inquiry required by section 208 and seeks comment for use in preparation of the required report. Section 208 states:

• Retransmission Consent: (47 U.S.C. 325(b); 47 CFR 76.64-70) In general, cable and direct broadcast satellite (DBS) operators must obtain retransmission consent from a commercial broadcast television station in order to carry its signal unless the broadcaster has elected to be carried pursuant to must-carry status. (47 U.S.C. 325(b); 47 CFR 76.64.) Under retransmission consent, the broadcaster and cable or DBS operator negotiate an agreement that may involve compensation in return for permission to retransmit the broadcast television station.

• The Network Program Nonduplication Rules (47 CFR 76.120-122 and 76.92-95) allow a local commercial television station to protect its exclusive distribution rights for network programming based on its affiliate agreement with the network within the geographic zone specified in the Commission's rules. 1 In the cable context, the station may assert these rights against duplicative programming on a broadcast station carried by a cable operator. In the satellite context, network nonduplication rights may only be asserted against the duplicative programming carried on a “nationally distributed superstation.” (47 CFR 76.122, 124. The FCC's definition of “nationally distributed superstation” can be found at 47 CFR 76.120.)

• The Syndicated Program Exclusivity Rules (47 CFR 76.101-110, 76.120 and 76.123-125) allow a local television broadcast station or distributor to protect its exclusive distribution rights for syndicated programming within the geographic zone specified in the Commission's rules. 2 In the cable context, the station or distributor may assert these rights against duplicative programming on a broadcast station carried by a cable operator. In the satellite context, syndicated exclusivity rights may only be asserted against the duplicative programming carried on a nationally distributed superstation.

• The Sports Blackout Rules (47 CFR 76.111, 76.120, 76.127-130) protect a sports team or league's exclusive distribution rights to a local sporting event ( i.e. , a sports team). The sports blackout rules are applied only if a local TV broadcast station is not carrying the local sporting event. If a local TV broadcast station does not have permission to carry the local game, then no other broadcaster's signal displaying the game can be carried by cable or satellite to subscribers in the protected local blackout zone. (47 CFR 76.128.)

3. In addition to these existing rules, SHVERA also authorizes satellite carriers to offer distant digital stations and out-of-market “significantly viewed” stations to subscribers under certain circumstances. ( See 47 U.S.C. 339 and 340, as amended by Sections 202 and 204 of SHVERA.) Existing statutory provisions permit cable operators to offer such stations. (17 U.S.C 111 (a), (c), and (f).)

4. The Bureau seeks comments, information and analysis on how these rules, individually or collectively, affect competition in the MVPD market. The Bureau also seeks studies that measure the impact of these rules, either individually or collectively, on competition generally. The Bureau further requests comment and analysis on the impact of these rules on the ability of rural cable operators to compete with DBS in the provision of digital broadcast television signals to consumers. In addition, the Bureau requests recommendations for statutory changes regarding these four rules affecting competition in the MVPD market.

5. Ex Parte Rules. There are no ex parte or disclosure requirements applicable to this proceeding pursuant to 47 CFR 1.1204(b)(1).

6. Comment Information. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings , 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should follow the instructions provided on the website for submitting comments.

• For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to ecfs@fcc.gov, and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.

• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington DC 20554.

• People with Disabilities: Contact the FCC to request materials in accessible formats (braille, large print, electronic files, audio format, etc.) by e-mail at FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0531 (voice), 202-418-7365 (TTY).