[Federal Register Volume 66, Number 161 (Monday, August 20, 2001)]
[Rules and Regulations]
[Pages 43480-43483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20903]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-119-FOR]


Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule.

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SUMMARY: OSM is approving, with two exceptions, an amendment to the 
Virginia permanent regulatory program (hereinafter referred to as the 
Virginia program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). The program amendment consists of changes to the 
Virginia Surface Mining Reclamation Regulations concerning letters of 
credit. The amendment is intended to revise the Virginia program to be 
consistent with the corresponding Federal regulations.

EFFECTIVE DATE: August 20, 2001.

FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big 
Stone Gap Field Office, Office of Surface Mining Reclamation and 
Enforcement, 1941 Neeley Road, Suite 201, Compartment 116, Big Stone 
Gap, Virginia 24219, Telephone: (540) 523-4303.

SUPPLEMENTARY INFORMATION:

I. Background on the Virginia Program.
II. Submission of the Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.

I. Background on the Virginia Program

    Section 503(a) of SMCRA 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 SMCRA. 30 U.S.C. 1253(a)(1) and (7). On the basis of these 
criteria, the Secretary of the Interior conditionally approved the 
Virginia program on December 15, 1981. You can find background 
information on the Virginia program, including the Secretary's 
findings, the disposition of comments, and the conditions of

[[Page 43481]]

approval in the December 15, 1981, Federal Register (46 FR 61085-
61115). You can find later actions on conditions of approval and 
program amendments at 30 CFR 946.11, 946.12, 946.13, 946.15, and 
946.16.

II. Submission of the Amendment

    By letter dated September 22, 2000 (Administrative Record Number 
VA-1008) the Virginia Department of Mines, Minerals and Energy (DMME) 
submitted an amendment to the Virginia program. In its letter, the DMME 
stated that the program amendment changes the Virginia program rules at 
4 VAC 25-130-700.5 and 4 VAC 25-130-800.21 in response to amendments 
required by OSM in the May 3, 1999, Federal Register (64 FR 23542).
    On May 3, 1999, OSM approved an amendment to the Virginia program 
which amended the Virginia Coal Surface Mining Control and Reclamation 
Act by adding ``letter of credit'' as an acceptable form of collateral 
bond to satisfy the performance bonding requirements of the Virginia 
Act. In our approval of the Virginia amendment, we required that the 
Virginia program regulations be revised to be no less effective than 
the Federal regulations at 30 CFR 800.5(b), and 30 CFR 800.21(b)(2) 
concerning letters of credit. We codified this requirement at 30 CFR 
946.16(a). The amendment submitted by Virginia is intended to satisfy 
this required amendment.
    We announced receipt of the proposed rulemaking in the October 4, 
2000, Federal Register (65 FR 59152), invited public comment, and 
provided an opportunity for a public hearing on the adequacy of the 
proposed amendment. The public comment period closed on November 3, 
2000. We received three comment letters from Federal agencies. No one 
requested to speak at a public hearing, so no hearing was held.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendments to the Virginia program. Only the substantive 
changes submitted by Virginia will be discussed below.

4 VAC 25-130-700.5. Definitions

    The definition of ``Collateral bond'' is amended by adding a new 
paragraph (d) to read as follows.

    (d) An irrevocable letter of credit of any bank organized or 
authorized to transact business in the United States, payable only 
to the Department at sight prepared in accordance with the Uniform 
Customs and Practices for Documentary Credits (1993 revision or the 
UCP revision current at the time of issuance of the letter of 
credit) International Chamber of Commerce (Publication No. 500).

    This new language is substantively identical to the Federal 
definition of ``Collateral bond'' at 30 CFR 800.5(b)(4), with two 
exceptions. Virginia uses the phrase ``at sight'' while the Federal 
rule says ``upon presentation.'' Ballentine's Law Dictionary, 3d ed., 
defines ``at sight'' to mean ``on presentment; on being shown the 
instrument.'' Therefore, Virginia's use of the phrase ``at sight'' is 
no less effective than 30 CFR 800.5(b)(4). The new State language also 
requires that irrevocable letters of credit be prepared in accordance 
with the Uniform Customs and Practices for Documentary Credits (1993 
revision or the UCP revision current at the time of issuance of the 
letter of credit) International Chamber of Commerce (Publication No. 
500). The Uniform Customs and Practices for Documentary Credits was 
created by the International Chamber of Commerce and is used in the 
United States as well as many other countries. The UCP defines the 
liabilities and responsibilities of banks, the relationship of letters 
of credits with other documents as well as various other provisions. We 
find that the incorporation by reference to the 1993 UCP is not 
inconsistent with the Federal regulations at 30 CFR 800.5(b)(4) and can 
be approved. However we are not approving the phrase, ``or the UCP 
revision current at the time of issuance of the letter of credit.'' We 
are not approving this language because we cannot approve future 
revisions without reviewing the revisions and understanding their 
effects on the Virginia program and whether they would render the 
Virginia program less effective.

4 VAC 25-130-800.21. Collateral bonds

    This provision is amended by revising paragraph (a) by adding the 
phrase ``except for letters of credit'' in the introductory sentence, 
adding a new paragraph (c), and re-lettering existing paragraph (c) as 
paragraph (d).
    As amended, 4 VAC 25-130-800.21(a) reads as follows.

    (a) Collateral bonds, except for letters of credit, shall be 
subject to the following conditions: The division shall * * *

    The counterpart Federal regulations at 30 CFR 800.21(a), concerning 
collateral bonds, contains this same phrase. We find that the words 
``except for letters of credit'' have the same effect in the Virginia 
program as they do in the counterpart Federal regulations. We find, 
therefore, that the State amendment does not render the Virginia 
program less effective than the Federal regulations at 30 CFR 800.21(a) 
and can be approved.

VAC 25-130-800.21(c) and (d)

    These provisions have been amended to read as follows.

    (c) Letters of credit shall be subject to the following 
conditions:
    (1) The letter may be issued only by a bank organized or 
authorized to do business in the United States and must conform to 
the Uniform Customs and Practice for Documentary Credits (1993 
Revision or revision current at the time of issuance of the letter 
of credit) International Chamber of Commerce (Publication No. 500);
    (2) Letters of credit shall be irrevocable during their terms. A 
letter of credit used as security in areas requiring continuous bond 
coverage shall be forfeited and shall be collected by the division 
if not replaced by other suitable bond or letter of credit at least 
30 days before its expiration date; and
    (3) The letter of credit shall be payable to the Department at 
sight, in part or in full, upon receipt from the division of a 
notice of forfeiture issued in accordance with 4 VAC 25-130-800.50.
    (d) Persons with an interest in collateral posted as a bond, and 
who desire notification of actions pursuant to the bond, shall 
request the notification in writing to the division at the time 
collateral is offered.

    We find that the new language at 4 VAC 25-130-800.21(c) is 
substantively identical to the counterpart Federal regulations at 30 
CFR 800.21(b) concerning collateral bonds, letters of credit, with the 
following two exceptions. Virginia uses the phrase ``at sight'' while 
the Federal rule says ``upon demand.'' Virginia's Commercial Code at 
Sec. 3-108, states that an instrument payable on demand include those 
payable at sight or on demand. Therefore, Virginia's use of the phrase 
``at sight'' is no less effective than the Federal rules. The new State 
language at 4 VAC 25-130-800.21(c)(1) also provides that letters of 
credit must conform to the Uniform Customs and Practice for Documentary 
Credits (1993 Revision or revision current at the time of issuance of 
the letter of credit) International Chamber of Commerce (Publication 
No. 500). As previously stated, the UCP defines the liabilities and 
responsibilities of banks, the relationship of letters of credits with 
other documents as well as various other provisions. We find that the 
incorporation by reference to the 1993 UCP is not inconsistent with the 
Federal regulations at 30 CFR 800.21(b)(1) and can be approved. However 
we are not approving the phrase, ``or revision current at the time of 
issuance of the

[[Page 43482]]

letter of credit.'' We are not approving this language because we 
cannot approve future revisions without reviewing the revisions and 
understanding their effects on the Virginia program and whether they 
would render the Virginia program less effective.
    In addition to our partial approval of the Virginia amendments, we 
find that the approved provisions fully address the requirements of the 
required amendment codified at 30 CFR 946.16(a), which can, therefore, 
be removed.

IV. Summary and Disposition of Comments

Federal Agency Comments

    On October 10, 2000, we asked for comments from various Federal 
agencies which may have an interest in the Virginia amendment 
(Administrative Record Number VA-1009). We solicited comments in 
accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of 
the Federal regulations. Two comment letters were received. The U.S. 
Department of Labor, Mine Safety and Health Administration (MSHA) 
responded and stated that the Virginia amendment does not impact, nor 
conflict with any law, policy or regulation enforced by MSHA. The U.S. 
Department of Agriculture, Natural Resources Conservation Service 
responded and concurred with the amendments.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(i) and (ii), OSM is required to 
solicit comments and obtain the written concurrence of the EPA with 
respect to those provisions of the proposed program amendment that 
relate to air or water quality standards promulgated 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.).
    None of the amendments submitted by Virginia pertain to air or 
water quality standards. By letter dated October 10, 2000, we requested 
EPA's comments on the proposed amendment (Administrative Record Number 
VA-1009).
    The EPA responded by letter dated April 11, 2001 (Administrative 
Record Number VA-1012), and stated that the amendment does not conflict 
with the Clean Water Act. The EPA provided no other comments.

Public Comments

    We solicited public comments on the amendment. We did not receive 
any public comments.

V. Director's Decision

    Based on the findings above, we are approving the amendments to the 
Virginia program, except as noted below. We are not approving the 
words, ``or the UCP revision current at the time of issuance of the 
letter of credit,'' in the definition of ``Collateral bond,'' paragraph 
(d), at 4 VAC 25-130-700.5; and, we are not approving the words, ``or 
revision current at the time of issuance of the letter of credit,'' at 
4 VAC 25-130-800.21(c)(1). In addition, we are removing the required 
amendment codified at 30 CFR 946.16(a), which has been satisfied by 
this amendment.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 946 which codifies decisions concerning the 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 demonstrates that the State has the 
capability of carrying out the provisions of SMCRA and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process.

VI. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowed by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Since this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have

[[Page 43483]]

a significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State 
submittal which is the subject of this rule is based upon counterpart 
Federal regulations for which an economic analysis was prepared and 
certification made that such regulations would not have a significant 
economic effect upon a substantial number of small entities. 
Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulation.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S. based enterprises to compete with foreign-based enterprises.
    This determination is based upon the fact that the State submittal 
which is the subject of this rule is based upon counterpart Federal 
regulations for which an analysis was prepared and a determination made 
that the Federal regulation was not considered a major rule.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 30, 2001.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 946--VIRGINIA

    1. The authority citation for part 946 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 946.12 is amended by revising the section heading and 
adding new paragraph (c) to read as follows:


Sec. 946.12  State program provisions and amendments not approved.

* * * * *
    (c)(1) We are not approving the words, ``or the UCP revision 
current at the time of issuance of the letter of credit,'' in the 
definition of ``Collateral bond,'' paragraph (d), at 4 VAC 25-130-
700.5; and
    (2) We are not approving the words, ``or revision current at the 
time of issuance of the letter of credit'' at 4 VAC 25-130-
800.21(c)(1).

    3. Section 946.15 is amended by adding a new entry to the table in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 946.15  Approval of Virginia regulatory program amendments.

* * * * *

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 Original amendment submission date   Date of final publication                Citation/description
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*                  *                  *                  *                  *                  *
                                                        *
September 22, 2000.................  [Insert date of publication  4 VAC 25-130-700.5 (partial approval);
                                      in the Federal Register].    800.21(a), (c)(1) (partial approval), (2) and
                                                                   (3), and (d).
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Sec. 946.16  [Removed]

    4. Section 946.16 is removed.
[FR Doc. 01-20903 Filed 8-17-01; 8:45 am]
BILLING CODE 4310-05-P