[Federal Register Volume 68, Number 124 (Friday, June 27, 2003)]
[Rules and Regulations]
[Pages 38179-38188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16353]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-097-FOR]


West Virginia Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are announcing our approval of amendments to the West 
Virginia surface coal mining regulatory program (the West Virginia 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). The amendments we are approving concern various 
changes and additions to the Code of State Regulations as contained in 
State House Bill 4163 and Senate Bill 2002.

EFFECTIVE DATE: June 27, 2003.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, 1027 Virginia Street East, Charleston, West 
Virginia 25301. Telephone: (304) 347-7158; Internet address: 
[email protected].

SUPPLEMENTARY INFORMATION:

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

I. Background on the West Virginia Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``* * * a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the West Virginia program on January 21, 1981. 
You can find background information on the West Virginia program, 
including the Secretary's findings, the disposition of comments, and 
conditions of approval of the West Virginia program in the January 21, 
1981, Federal Register (46 FR 5915). You can also find later actions 
concerning West Virginia's program and program amendments at 30 CFR 
948.10, 948.12, 948.13, 948.15, and 948.16.

II. Submission of the Amendment

    By letter dated April 9, 2002 (Administrative Record Number WV-
1296), the West Virginia Department of Environmental Protection (WVDEP) 
sent us a proposed amendment to its program under SMCRA (30 U.S.C. 1201 
et seq.). The proposed amendment consists of several changes to the 
Code of State Regulations (CSR) at 38-2, and the addition of new CSR 
38-4, the Coal Related Dam Safety Rules, as contained in House Bill 
4163.
    We announced the receipt and provided an opportunity to comment on 
the amendment in the June 6, 2002, Federal Register (67 FR 38919) 
(Administrative Record Number WV-1311). The comment period closed on 
July 8, 2002. We received comments from the U.S. Department of Labor's 
Mine Safety and Health Administration.
    By letter and electronic mail dated June 19, 2002, WVDEP sent us 
additional amendments to its program concerning changes to CSR 38-2 
that are contained in Senate Bill 2002 (Administrative Record Number 
WV-1316). Senate Bill 2002 was signed by

[[Page 38180]]

the Governor of West Virginia on June 21, 2002; it authorized WVDEP to 
promulgate revisions to its Surface Mining and Reclamation Regulations.
    We announced receipt of the proposed amendments in the August 16, 
2002, Federal Register (67 FR 53542) (Administrative Record Number WV-
1322). In that notice, we also identified proposed amendments that we 
inadvertently omitted identifying in the June 6, 2002, Federal Register 
notice, including the new Coal Related Dam Safety Rules at CSR 38-4. 
The comment period closed on September 16, 2002. We received comments 
from the U.S. Department of Labor's Mine Safety and Health 
Administration, the U.S. Department of the Interior's Fish and Wildlife 
Service, and the U.S. Environmental Protection Agency.
    These two submissions include amendments to CSR 38-2 that are 
intended to address required program amendments codified in the Federal 
regulations at 30 CFR 948.16 (rrrr), (ssss), (tttt), (uuuu), (vvvv), 
(xxxx), (yyyy), (zzzz), (bbbbb), (ccccc), (ddddd), (eeeee), (ggggg), 
(hhhhh), (mmmmm), (nnnnn), and (qqqqq).
    Revisions to the State's contemporaneous reclamation requirements 
are contained in the two amendment submittals discussed above. In order 
to expedite our review of the State's amendments to its contemporaneous 
reclamation provisions, we separated those amendments from the two 
amendment submittals discussed above. We published our findings and 
decision on the State's contemporaneous reclamation amendments in the 
December 3, 2002, Federal Register (67 FR 71832) (Administrative Record 
Number WV-1344).
    The proposed new Coal Related Dam Safety Rules at CSR 38-4 are 
intended to address, in part, a letter we sent to the State on July 22, 
1997 (Administrative Record Number WV-1071), in accordance with the 
Federal regulations at 30 CFR 732.17(d). The Federal regulation 30 CFR 
732.17(d) provides 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.'' We separated the State's new Coal Related Dam Safety Rules 
at CSR 38-4 from the amendment submittals discussed above. We will 
render a final decision on those new rules at a later date as part of a 
program amendment that addresses the State's responses to 732 letters. 
For more information on the State's responses to 732 letters, see the 
proposed rule notice in the January 12, 2001, Federal Register (66 FR 
2866).
    We also removed from these amendments the State's proposed rules at 
CSR 38-2-25 concerning the exemption for coal extraction incidental to 
extraction of other minerals. The proposed rules at CSR 38-2-25 were 
submitted in response to a 732 letter dated February 7, 1990 
(Administrative Record Number WV-827), concerning exemption for coal 
extraction incidental to the extraction of other minerals removed for 
purposes of commercial sale (30 CFR part 702). We separated the 
proposed rules at CSR 38-2-25 from the amendment submittals discussed 
above, and we will publish our findings at a later date as part of the 
program amendment that addresses the State's responses to 732 letters. 
For more information on the State's responses to 732 letters, see the 
proposed rule notice in the January 12, 2001, Federal Register (66 FR 
2866).
    In addition, the proposed rules at CSR 38-2-3.12.a.1-2 regarding 
Subsidence Control Plans; 38-2-5.4.b.8 regarding Excavated Sediment 
Control Structures; 38-2-5.4.d.3 regarding Coal Processing Waste Dams; 
and 38-2-16.2.c.4 regarding Bonding for Subsidence Damage are identical 
to what we previously considered from the submitted West Virginia House 
Bill 2663. Each of those amendments was approved in our decision on WV-
088, which was published in the Federal Register on May 1, 2002 (67 FR 
21904) (Administrative Record Number WV-1300). Therefore, we will not 
reconsider those provisions here.

III. OSM's Findings

    As discussed under ``Submission of the Amendment,'' the State's 
submittal includes proposed amendments that would address required 
program amendments codified at 30 CFR 948.16. For the reasons discussed 
below, we are approving the proposed amendments as submitted on April 
9, 2002, and June 19, 2002. Any revisions that we do not specifically 
discuss below concern nonsubstantive wording or editorial changes and 
are approved here without discussion.

CSR 38-2 Surface Mining Reclamation Regulations

1. 38-2-2.31.b.1. Definition of Forestry
    The definition of ``forestry'' has been amended by adding the words 
``for the production of wood or wood products.'' In its submittal of 
this amendment, WVDEP stated that it is intended to satisfy the 
required program amendment identified in the August 18, 2000, Federal 
Register (65 FR 50409, 50411-12). The required program amendment 
codified at 30 CFR 948.16(rrrr) provides that CSR 38-2-2.31.b must be 
amended to define forestry to mean a postmining land use used or 
managed for the long term production of wood or wood products in 
accordance with the Federal definition of forestry under the definition 
of land use at 30 CFR 701.5. We find this change to be consistent with 
and no less effective than the Federal definition of ``forestry'' at 
paragraph (d) under the definition of ``land use'' at 30 CFR 701.5 and 
it can be approved. Therefore, the required program amendment codified 
at 30 CFR 948.16(rrrr) is satisfied and can be removed.
2. 38-2-2.43. Definition of Director
    This definition was deleted. The definition was rendered obsolete 
due to the State's changing the Division of Environmental Protection to 
the Department of Environmental Protection and changing the title to 
secretary as defined at subsection 2.108. We find that the deletion 
does not render the West Virginia program less effective than the 
Federal regulations and can be approved.
3. 38-2-2.108. Definition of Secretary
    This definition is new, and defines ``Secretary'' to mean the 
Secretary of the Department of Environmental Protection or the 
Secretary's authorized agent. We find that the definition does not 
render the West Virginia program less effective than the Federal 
regulations and can be approved.
4. 38-2-3.1.i.2. Permit Application Requirements and Contents
    This provision is amended by deleting the word ``performance'' 
before the word ``bond.'' As amended, the provision requires an 
applicant to identify whether it has ``[f]orfeited a bond or similar 
security in lieu of bond.'' In its submittal of this amendment, WVDEP 
stated that the deletion of the word ``performance'' was intended to 
render the definition consistent with the Code of West Virginia (W. Va. 
Code). W. Va. Code 22-3-11(a), concerning bonding requirements, 
provides that a ``penal bond'' shall be furnished by the applicant and 
conditioned upon the operator faithfully performing all of the 
requirements of W. Va. Code 22-3 and of the permit. OSM had approved 
the statutory provision previously on October 4, 1995 (60 FR 51901). We 
find that the deletion of the term ``performance'' in its regulations 
does not render the West Virginia program

[[Page 38181]]

less effective than the Federal bonding requirements at 30 CFR 800.11 
concerning the requirement to file a bond and can be approved. In a 
similar fashion, the State has deleted the word ``performance'' at 38-
2-3.25.a.4, 3.30.d.8, 3.32.e, 5.4.e.2, 8.2.b.3, 10.6.b.3, 11.2.b, 
11.4.a.1, 11.4.a.4, and 22.7.a. For the reason stated above, we find 
that the deletion of the term ``performance'' does not render the West 
Virginia program less effective than the Federal bonding requirements 
at 30 CFR 800.11 concerning the requirement to file a bond and can be 
approved.
5. 38-2-3.25.a.4. Reinstatement of Permits
    This provision is amended by adding the word ``reinstatement'' 
following the word ``transfer'' that appears in the second sentence. 
Also, the third sentence is amended by adding the following words to 
the beginning of the sentence: ``[e]xcept for reinstatement.'' The 
amendments are intended to clarify that CSR 38-2-3.25.a.4 also applies 
to the reinstatement of permits and in no event can a reinstated permit 
be approved in advance of the close of the public comment period. This 
amendment satisfies the required program amendment codified at 30 CFR 
948.16(ssss). Therefore, we find that this amendment can be approved 
and the required program amendment codified at 30 CFR 948.16(ssss) can 
be removed.
6. 38-2-7.4.a.1. Commercial Forestry and Forestry Postmining Land Use
    This provision is amended by adding the words ``[c]ommercial 
forestry shall be established on areas receiving a variance from AOC 
and'' at the beginning of the third sentence. This amendment is 
intended to clarify that only commercial forestry postmining land use 
and not forestry postmining land use may be approved for areas 
receiving a variance from the AOC requirements. This amendment 
satisfies the required program amendment codified at 30 CFR 
948.16(tttt). Therefore, we find that this amendment can be approved 
and the required program amendment codified at 30 CFR 948.16(tttt) can 
be removed.
7. 38-2-7.4.b.1.C.5. Forestry Postmining Land Use--Ponds and 
Impoundments
    This provision is amended by clarifying that ponds and impoundments 
below the fill must be removed after mining and all other ponds or 
impoundments that are left in place must meet the requirements of CSR 
38-2-5.5. As amended, this provision satisfies the required program 
amendment at 30 CFR 948.16(uuuu). Therefore, we find that this 
amendment can be approved and the required program amendment codified 
at 30 CFR 948.16(uuuu) can be removed.
8. 38-2-7.4.b.1.D.1. Definition of Soil
    This provision is amended by adding the following definitions of O 
horizon and Cr horizon:

    O horizon means the top-most horizon or layer of soil dominated 
by organic material derived from dead plants and animals at various 
stages of decomposition; it is sometimes referred to as the duff or 
litter layer or the forest floor. Cr horizon means the horizon or 
layer below the C horizon, consisting of weathered or soft bedrock 
including saprolite or partly consolidated soft sandstone, 
siltstone, or shale.

    We find that the definitions for O and Cr horizons at 38-2-
7.4.b1.D.1 are acceptable and further clarify the State's soil horizon 
requirements. Though different from the Federal definition of soil 
horizons at 30 CFR 701.5, the State's definitions are not inconsistent 
with the Federal definition and can be approved. As proposed, this 
provision partially satisfies the required program amendment at 30 CFR 
948.16(vvvv).
    The required program amendment at 30 CFR 948.16(vvvv) also requires 
that the State delete the phrase ``except for those areas with a slope 
of at least 50%'' from its regulations at CSR 38-2-7.4.1.D.2. We have 
reconsidered this required amendment, and for the reasons discussed 
below find that the phrase ``except for those areas with a slope of at 
least 50%'' does not render the West Virginia program less effective. 
Therefore, the required program amendment at 30 CFR 948.16(vvvv) is 
fully satisfied and can be removed.
    The State regulations at CSR 38-2-7.4 set forth the standards 
applicable to mountaintop removal mining operations with a postmining 
land use of ``commercial forestry and forestry.'' The CSR 38-2-
7.4.b.1.D concerns soil and soil substitutes. Subsection 7.4.b.1.D.1 
defines soil. Subsection 7.4.b.1.D.2 concerns the recovery of soil, and 
provides that the operator must recover and use the soil volume equal 
to the total soil volume on the mined area, except for those areas with 
a slope of at least 50 percent. In other words, soil, which includes 
the O, A, E, B, C, and Cr horizons on slopes less than 50 percent 
within the mined area will be recovered and used, whereas soil on 
slopes 50 percent or steeper will not be separately recovered. We had 
interpreted subsection 7.4.b.1.D.2 to mean that for slopes of 50 
percent or greater, the topsoil would not be recovered and, therefore, 
the provision rendered the West Virginia program less effective than 
the Federal regulations at 30 CFR 816.22.
    Because subsection 7.4.b.1.D.2 only addresses soil, it must be read 
in concert with subsections 7.4.b.1.D.3, D.4, and D.5 to fully 
understand its effect. It is our understanding that under subsection 
7.4.b.1.D.2, when slopes are 50 percent or steeper, the soil may not be 
separately recovered. In such cases, the requirements of subsection 
7.4.b.1.D.3 concerning soil substitutes would apply. Subsection 
7.4.b.1.D.3 provides that when the soil volume recovered under 
subsection 7.4.b.1.D.2 is not sufficient to meet the depth requirements 
for the postmining land use, selected overburden materials may be used 
as soil substitutes from within 10 feet of the soil surface on the 
mined area. Subsection 7.4.b.1.D.3 provides that material from this 10-
foot layer may be removed with the soil and mixed with the soil in 
order to meet the depth requirement. We understand this to mean that, 
despite the fact that under subsection 7.4.b.1.D.2 soil may not be 
separately removed on slopes of at least 50 percent, the soil on those 
slopes will be removed together with the underlying 10-feet of 
weathered, slightly acid brown sandstone as necessary to meet the depth 
requirements, and the resulting soil medium will be the best available 
to support the proposed revegetation. (We note that subsection 
7.4.b.1.D.3 contains a typographical error; in the first sentence, the 
word ``sufficient'' should be ``insufficient'' as noted previously in 
our final rule of August 18, 2000, 65 FR at 50417.)
    Subsection 7.4.b.1.D.4 provides that if the soil and other 
materials saved under paragraph D.2 and the underlying 10 feet of 
weathered, slightly acid brown sandstone saved under paragraph D.3 are 
insufficient to meet the depth requirements, the operator will be 
required to use more of the weathered, slightly acid brown sandstone 
from below the 10 feet of soil surface on the mined area to meet the 
depth requirements.
    Subsection 7.4.b.1.D.5 provides that upon a demonstration that the 
depth of materials saved under subsections 7.4.b.1.D.2, D.3, and D.4 
are insufficient to meet the depth requirements, then up to 2/3 of the 
mine spoil may consist of the best available material or mix of 
materials.
    Taken together, and based on our understanding discussed above, we 
find that these subsections are no less effective than the Federal 
regulations at 30 CFR 816.22. Therefore, the required program amendment 
at 30 CFR 948.16(vvvv) is satisfied and can be removed.

[[Page 38182]]

9. 38-2-7.4.b.1.G.1. Ground Cover Vegetation
    This provision is amended by deleting the word ``excessive'' from 
the last sentence. In addition, the following language is added to the 
end of this provision:

    Lesser or no vegetative cover may only be authorized by the 
Secretary when mulch or other soil stabilizing practices have been 
used to protect all disturbed areas unless demonstrated that the 
reduced cover is sufficient to control erosion and air pollution 
attendant to erosion regardless of slope.

    These amendments are intended to satisfy the required program 
amendment at 30 CFR 948.16(xxxx). The requirement at 30 CFR 
948.16(xxxx) provides that the West Virginia program must be amended 
to:

    (1) Delete the word ``excessive'' at CSR 38-2-7.4.b.1.G.1.; and 
(2) provide that at CSR 38-2-7.4.b.1.G.1., lesser or no vegetative 
cover may only be authorized by the Director [Secretary] when mulch 
or other soil stabilizing practices have been used to protect all 
disturbed areas and it has been demonstrated that the reduced 
vegetative cover is sufficient to control erosion and air pollution 
attendant to erosion regardless of slope.

    The amendments proposed by the State are identical to the 
requirements at 30 CFR 948.16(xxxx) except as follows. The State's 
proposed language includes the word ``unless'' where the language of 
the required amendment uses the word ``and.'' The effect of the word 
``unless'' is that the amendment provides that lesser or no vegetative 
cover may be authorized if: (1) Mulch or other soil stabilizing 
practices are used; or (2) the reduced vegetative cover is sufficient 
to control erosion and attendant air pollution, in which case mulch or 
other soil stabilizing practices need not be used as provided by 30 CFR 
816/817.114. We find that with the removal of the word ``excessive,'' 
the required program amendment at 30 CFR 948.16(xxxx) is satisfied and 
the amendment can be approved. Therefore, the required program 
amendment at 30 CFR 948.16(xxxx) can be removed. Using the word 
``unless'' is sufficient to assure the control of erosion while more 
effectively promoting tree establishment by not requiring mulch or 
other stabilizing practices that may inhibit tree establishment where 
they are not needed to control erosion.
10. 38-2-7.4.b.1.G.3. Rills and Gullies
    This provision is being amended by adding the following language to 
the end of the existing provision:

and/or disrupt the approved postmining land use or the establishment 
of vegetative cover or cause or contribute to a violation of the 
water quality standards for the receiving stream.

    As amended, this provision provides as follows:

    7.4.b.1.G.3. The permittee may regrade and reseed only those 
rills and gullies that are unstable and/or disrupt the approved 
postmining land use or the establishment of vegetative cover or 
cause or contribute to a violation of the water quality standards 
for the receiving stream.

    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 be filled, regraded, or 
otherwise stabilized. We understand the amended State provision 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 revegetation soils that would normally 
take place during routine repair of rills and gullies. Such compaction 
can have a detrimental effect on tree growth. Therefore, the limitation 
on the repair of rills and gullies is intended to help assure the 
success of the commercial forestry postmining land use.
    An area of potential concern with this provision is that it 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. On the other hand, 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., 7.3, respectively), the establishment of 
vegetative cover (38-2-7.4.b.1.G), 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 
38-2-7.4.b.1.G.3, taken in concert with the above-referenced State 
program 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. If, in future reviews, 
we should determine that West Virginia is implementing this provision 
in a manner that is inconsistent with this finding, a further amendment 
may be required. In addition, we find that this amendment satisfies the 
required program amendment codified at 30 CFR 948.16(yyyy), which can, 
therefore, be removed.
11. 38-2-7.4.b.1.H.2. Commercial Forestry and Forestry--Tree Species 
and Compositions
    This provision is amended by deleting ``7.4.b.1.G.1.'' in two 
places and replacing the deleted citation with ``7.4.b.1.H.1.'' We find 
that this amendment satisfies the required program amendment at 30 CFR 
948.16(zzzz) and can be approved. The requirement at 30 CFR 
948.16(zzzz) can be removed.
12. 38-2-7.4.b.1.I.2. Commercial Forestry and Forestry--Phase II Bond 
Release
    This provision is amended by deleting a reference to CSR 38-2-
7.4.d.1.G.1 and adding in its place a reference to CSR 38-2-7.4.b.1.H.1 
in the third sentence. The phrase ``where there is potential for 
excessive erosion on slopes greater than 20%'' is deleted from the 
fourth sentence. The words ``and rock cover'' are deleted from the 
fourth sentence and are replaced by the words ``except where a lesser 
vegetation cover has been authorized.''
    We find that the deletion of the phrase ``where there is potential 
for excessive erosion on slopes greater than 20%'' satisfies the 
required program amendment at 30 CFR 948.16(bbbbb) and can be approved. 
We find that the deletion of the words ``rock cover'' satisfies the 
required program amendment at 30 CFR 948.16(ccccc) and can be approved. 
Therefore, the required program amendments at 30 CFR 948.16(bbbbb) and 
30 CFR 948.16(ccccc) have been satisfied and can be removed.
    We find that the deletion of the reference to CSR 38-2-7.4.d.1.G.1 
and the addition in its place of a reference to CSR 38-2-7.4.b.1.H.1 in 
the third sentence accurately corrects an erroneous citation and can be 
approved. This amendment also satisfies the required program amendment 
at 30 CFR 948.16(ddddd) which can, therefore, be removed.
    We find that the addition of the words ``except where a lesser 
vegetation cover has been authorized'' does not, by itself,

[[Page 38183]]

render the West Virginia program less effective than the Federal 
regulations and can be approved. It is our understanding that this 
exception acknowledges the provision at CSR 38-2-7.4.b.1.G.1, 
concerning ground cover vegetation. CSR 38-2-7.4.b.1.G.1 authorizes the 
Secretary of the WVDEP to allow lesser or no vegetative cover under 
specified circumstances when mulch or other stabilizing practices have 
been used to protect all disturbed areas, unless it is demonstrated 
that the reduced vegetative cover is sufficient to control erosion and 
air pollution attendant to erosion regardless of slope (see Finding 9 
above). Our determination that the addition of the language quoted 
above does not render the West Virginia program less effective than the 
Federal regulations is based upon our understanding that, where lesser 
vegetative cover is allowed, the vegetative cover must be sufficient to 
control erosion and air pollution attendant to erosion.
13. 38-2-7.4.b.1.I.3. Commercial Forestry and Forestry--Phase III Bond 
Release
    This provision is amended by deleting the first word in the third 
sentence, and adding in its place the phrase ``[a]bove and beyond all 
other standards in effect.'' We find that this amendment clarifies that 
this provision is in addition to all other program requirements and 
does not render the West Virginia program less effective than the 
Federal regulations at 30 CFR 800.40 and can be approved.
14. 38-2-7.5.i.1.B. Homestead Roads
    This provision is amended by adding, in the third sentence, the 
phrase ``meet the primary road requirements of section 2.4 of this 
rule'' immediately following the words ``Highway standards.'' It 
appears that the term ``section 2.4'' contains a typographical error, 
and should read ``section 4.'' Section ``2.4'' is actually the 
definition of ``acid producing coal seam,'' whereas section CSR 38-2-4 
concerns ``haulage-ways, roads or access roads.''
    This proposed amendment is intended to address the required program 
amendment codified at 30 CFR 948.16(ggggg). The Federal requirement at 
30 CFR 948.16(ggggg) provides that CSR 38-2-7.5.i.1.B be amended, or 
that the West Virginia program otherwise be amended, to clarify that 
roads which meet the definition of road at CSR 38-2-2.59 and 4.1 and 
that are to be retained as part of the postmining land use must be 
designated and constructed to meet the primary road requirements of CSR 
38-2-4. The State has complied with this requirement by requiring that 
``main roads'' of homesteads shall meet the primary road requirements 
of section CSR 38-2-4. In addition, the county or State road 
authorities will accept responsibility for maintaining these homestead 
roads after mining. We are approving this amendment with the 
understanding that the apparent typographical error (``section 2.4'') 
is actually intended to be ``section 4.'' In addition, we are removing 
the required amendment at 30 CFR 948.16(ggggg) because it has been 
satisfied.
15. 38-2-7.5.i.3.Q. Homestead Water Reservoir
    This provision is amended by adding a sentence to the end of this 
provision. The new sentence provides as follows: ``The reservoir is 
subject to requirements under subsection 5.5 of this rule.'' This 
amendment is intended to satisfy the required program amendment at 30 
CFR 948.16(hhhhh).
    The Federal requirement at 30 CFR 948.16(hhhhh) requires that CSR 
38-2-7.5.i.3.Q be amended, or that the West Virginia program otherwise 
be amended, to require that all permanent impoundments approved for 
Homestead postmining land use must comply with CSR 38-2-3.6.b.1 and 
5.5. We find that the proposed amendment satisfies the requirement to 
comply with CSR 38-2-5.5 and can be approved.
    CSR 38-2-5.5 provides as follows:

    5.5. Permanent impoundments. Those sediment control or other 
water retention structures or impounding structures to be left in 
place after final bond release shall be considered permanent and, if 
authorized by the Secretary as part of the permit application or a 
revision to a permit, may be left in accordance with the following 
requirements:

    We understand CSR 38-2-5.5 to mean that a permanent impoundment may 
be left in place if approved by the Secretary of WVDEP as part of the 
permit application or a revision to a permit. Compliance with the 
permit requirements would, of course, include compliance with the 
requirement at CSR 38-2-3.6.b.1 for a narrative explaining the 
construction, modification, use, and maintenance of permanent 
impoundments. Therefore, we find that the required program amendment at 
30 CFR 948.16(hhhhh) is fully satisfied and can be removed.
16. 38-2-7.5.i.10. Wetlands for Homesteads
    This provision is amended by adding a sentence to the end of this 
provision. The new sentence provides as follows: ``Any pond or 
impoundment left in place is subject to requirements under subsection 
5.5 of this rule.'' We are approving the amendment because it does not 
render the West Virginia program less effective than the Federal 
regulations at 30 CFR 816.49(b).
17. 38-2-7.5.j.3.A. Soil for Homesteads
    This provision is amended by adding the following definitions of O 
horizon and Cr horizon:

    O horizon means the top-most horizon or layer of soil dominated 
by organic material derived from dead plants and animals at various 
stages of decomposition; it is sometimes referred to as the duff or 
litter layer or the forest floor. Cr horizon means the horizon or 
layer below the C horizon, consisting of weathered or soft bedrock 
including saprolite or partly consolidated soft sandstone, 
siltstone, or shale.

    There are no Federal counterparts to the proposed definitions of 
``O'' and ``Cr'' soil horizons. However, we find that the proposed 
definitions are not inconsistent with the Federal definition of ``soil 
horizons'' at 30 CFR 701.5 and can be approved.
18. 38-2-7.5.j.6.A. Ground Cover Vegetation for Homesteads
    This provision is amended by deleting the word ``excessive'' in the 
fourth sentence, immediately prior to the word ``erosion.'' This 
amendment is intended to satisfy the required program amendment 
codified at 30 CFR 948.16(mmmmm). The Federal requirement at 30 CFR 
948.16(mmmmm) provides that CSR 38-2-7.5.j.6.A should be amended by 
deleting the word ``excessive.'' We find that the proposed amendment 
satisfies the required program amendment codified at 30 CFR 
948.16(mmmmm) and can be approved. In addition, 30 CFR 948.16(mmmmm) 
can be removed.
19. 38-2-7.5.j.6.B. Rills and Gullies Associated Wth Homesteads
    This provision is being amended by adding the following language to 
the end of the existing provision:

And/or disrupt the approved postmining land use or the establishment 
of vegetative cover or cause or contribute to a violation of the 
water quality standards for the receiving stream.

    As amended, this provision provides as follows:

    7.5.j.6.B. The permittee may regrade and reseed only those rills 
and gullies that are unstable and/or disrupt the approved postmining 
land use or the establishment of vegetative cover or cause or 
contribute to a violation of the water quality standards for the 
receiving stream.

    The Federal regulations at 30 CFR 816.95(b) require that rills and 
gullies that either (1) disrupt the postmining

[[Page 38184]]

land use or the reestablishment of the vegetative cover or (2) cause or 
contribute to the violation of water quality standards be filled, 
regraded, or otherwise stabilized. We understand the amended State 
provision 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.
    An area of potential concern with this provision is that it 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. On the other hand, 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., 7.3., respectively), the establishment of 
vegetative cover (38-2-7.4.b.1.G), 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 
38-2-7.5.j.6.B, taken in concert with the above-referenced State 
program 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. If, in future reviews, 
we should determine that West Virginia is implementing this provision 
in a manner that is inconsistent with this finding, a further amendment 
may be required. In addition, we find that this amendment satisfies the 
required program amendment codified at 30 CFR 948.16(nnnnn), which can, 
therefore, be removed.
20. 38-2-7.5.o.2. Phase II Bond Release for Homesteads
    This provision is amended by deleting the words ``rock cover'' from 
the list that defines ``ground cover.'' This amendment is intended to 
satisfy the required program amendment codified at 30 CFR 
948.16(qqqqq), which requires the deletion of the words ``rock cover'' 
from CSR 38-2-7.5.o.2. We find that the proposed amendment satisfies 
the required program amendment at 30 CFR 948.16(qqqqq) and can be 
approved. In addition, we find that 30 CFR 948.16(qqqqq) can be 
removed.
21. 38-2-10.4.a.1.D. Prime Farmland
    This is a new provision and provides as follows:

    10.4.a.1.D. The aggregate total prime farmland acreage shall not 
be decreased from that which existed prior to mining. Water bodies, 
if any, constructed during mining and reclamation must be located 
within the post reclamation non-prime farmland portions of the 
permit area. The creation of such water bodies must be approved by 
the Department of Environmental Protection and have the consent of 
all affected property owners within the permit area.

    We find that this provision, although codified as a performance 
standard, is substantively identical to the Federal counterpart 
regulations at 30 CFR 785.17(e)(5) and can be approved because the 
State's permit findings for prime farmland at subsection 3.20 would 
require compliance with it.
22. 38-2-11.5. Open Acre Limit Bonding
    This subsection concerning open acre limit bonding has been 
deleted. In its submittal of this amendment, WVDEP stated that CSR 38-
2-11.5 was deleted because these bonding provisions were obsolete and 
no longer utilized in the State. There is no Federal counterpart to 
this deleted provision. However, we find that its deletion does not 
render the West Virginia program less effective than the Federal 
regulations and can be approved.
23. 38-2-11.5 (formerly 11.6) Site Specific Bonding
    Subdivision 38-2-11.5.a. was amended by deleting a requirement in 
the fifth paragraph that existing permits be reviewed at mid-term to 
determine adequacy of existing bond. As amended, bond adequacy would be 
evaluated only at the time of permit renewal. In addition, the bond 
adequacy determination criteria at CSR 38-2-11.5.a.1 through a.5 are 
deleted. Finally, the paragraph following 38-2-11.5.a.5., concerning 
operations with inactive status, was deleted.
    In its submittal of these revisions, WVDEP stated that the purpose 
of these amendments was to update this section. The Federal regulations 
at 30 CFR 800.15(a), concerning adjustment of bond amount, provide that 
the amount of the permittee's bond or deposit shall be adjusted from 
time to time as the area requiring bond coverage is increased or 
decreased or where the cost of future reclamation changes. In addition, 
30 CFR 774.10 requires regulatory authorities to review outstanding 
permits during the term of the permit. The deletion of the requirement 
for mid-term review at CSR 38-2-11.5.a appears to render the West 
Virginia program less effective than the Federal requirements at 30 CFR 
774.10 and 800.15(a). However, W. Va. Code 22-3-19(c) continues to 
require the mid-term review, wherein the WVDEP may require reasonable 
revisions or modifications of a permit, based on written findings.
    The deletion of the bond adequacy determination criteria at 38-2-
11.5.a.1. through 11.5.a.5. does not render the State rules less 
effective than the Federal regulations. Despite the deletion of the 
criteria at 11.5.a.1. through 5., the State rules at 38-2-11.5.b. 
through 11.5.f. provide the criteria to determine the site-specific 
bond amount. Therefore, the deletion of CSR 38-2-11.5.a.1 through 
11.5.a.5 can be approved.
    The deletion of the paragraph following CSR 38-2-11.5.a.5, 
concerning operations with inactive status, does not render the West 
Virginia program less effective, because the site-specific criteria for 
determining the appropriate bond at CSR 38-2-11.5.b through 11.5.f 
apply to all operations, including those on inactive status. All 
existing permits with inactive status have been reviewed by the State 
since these requirements took effect and their bonds have been adjusted 
to comply with the site-specific bonding requirements. Therefore, the 
deleted paragraph concerning inactive status that appeared immediately 
following CSR 38-2-11.5.a.5 is no longer necessary and the deletion can 
be approved.
24. 38-2-12.5.e. Acid Mine Drainage (AMD) Bond Forfeiture Inventory
    This provision is amended by updating, from 1993 to 2002, the date 
that the AMD bond forfeiture inventory must be submitted to the West 
Virginia Legislature. In addition, the submittal of the inventory will 
be required annually. In its submittal of this amendment, WVDEP stated 
that the change will make its rules consistent with the W.Va. Code. We 
find that these amendments do not render the West Virginia program less 
effective than the Federal regulations and can be approved.
25. 38-2-14.12.a.1. Variance from Approximate Original Contour (AOC) 
Requirements
    This provision concerns the procedures for obtaining an AOC 
variance for steep slope mining

[[Page 38185]]

operations, and is amended by deleting the words ``commercial 
forestry.'' This amendment is intended to satisfy the required program 
amendment codified at 30 CFR 948.16(eeeee). The Federal requirement at 
30 CFR 948.16(eeeee) provides that the State must delete the words 
``commercial forestry'' at CSR 38-2-14.12.a.1. This revision was 
necessary because agricultural uses, which may include commercial 
forestry, are not authorized postmining land uses for steep slope 
mining operations seeking a variance from the AOC restoration 
requirements at section 515(e)(2) of SMCRA. The deletion of the words 
``commercial forestry'' at subsection 14.12.a.1 is no less effective 
than the Federal requirements at 30 CFR 785.16(a)(1). Therefore, we 
find that this amendment satisfies the required program amendment 
codified at 30 CFR 948.16(eeeee) and can be approved. In addition, the 
required program amendment at 30 CFR 948.16(eeeee) can be removed.
26. 38-2-17.3.b.2. Eligibility for Small Operator Assistance Program 
(SOAP)
    This provision is amended by deleting the term 5 percent, and 
adding in its place the term 10 percent. As amended, this provision 
provides that production from the following operations shall be 
attributed to the applicant:

    17.3.b.2. The pro rata share, based upon percentage of ownership 
of applicant, of coal produced in other operations by persons who 
own more than ten percent (10%) of the applicant's operation;

    We find that this revision renders the provision substantively 
identical to and no less effective than the counterpart Federal SOAP 
eligibility provision at 30 CFR 795.6(a)(2)(ii), and can be approved. 
In addition, we find that the proposed State revision satisfies that 
portion of our 732 letter dated July 22, 1997, regarding SOAP 
eligibility requirements.
27. 38-2-17.4. Request for SOAP Assistance
    This provision is amended by adding new subdivisions 17.4.a through 
17.4.f.2 to provide as follows:
    17.4. Request for Assistance. Each applicant requesting assistance 
shall provide information on forms provided by the Secretary in an 
application that shall be clear and concise and shall be provided in a 
format prescribed by the Secretary and/or a format required by the 
Federal Office of Surface Mining Reclamation and Enforcement. Each 
application for assistance shall include the following information:
    17.4.a. A statement of the operator's intent to file a permit 
application;
    17.4.b. The names and addresses of:
    17.4.b.1. The permit applicant; and
    17.4.b.2. The operator, if different from the applicant.
    17.4.c. A schedule of the estimated total production of coal from 
the proposed permit area and all other locations from which production 
is attributed to the applicant. The schedule shall include for each 
location:
    17.4.c.1. The operator or company name under which coal is or will 
be mined;
    17.4.c.2. The permit number and Mine Safety and Health 
Administration (MSHA) number;
    17.4.c.3. The actual coal production during the year preceding the 
year for which the applicant applies for assistance and production that 
may be attributed to the applicant; and
    17.4.c.4. The estimated coal production and any production which 
may be attributed to the applicant for each year of the proposed 
permit.
    17.4.d. A description of:
    17.4.d.1. The proposed method of coal mining;
    17.4.d.2. The anticipated starting and termination dates of mining 
operations;
    17.3.d.3. The number of acres of land to be affected by the 
proposed mining operation; and
    17.4.d.4. A general statement on the probable depth and thickness 
of the coal resource including a statement of reserves in the permit 
area and the method by which they were calculated.
    17.4.e. A U.S. Geological Survey topographic map at a scale of 
1:24,000 or larger or other topographic map of equivalent detail which 
clearly shows:
    17.4.e.1. The area of land to be affected;
    17.4.e.2. The location of any existing or proposed test borings; 
and
    17.4.e.3. The location and extent of known workings of any 
underground mines.
    17.4.f. Copies of documents which show that:
    17.4.f.1. The applicant has a legal right to enter and commence 
mining within the permit area; and
    17.4.f.2. A legal right of entry has been obtained for the program 
administrator and laboratory personnel to inspect the lands to be mined 
and adjacent areas to collect environmental data or to install 
necessary instruments.
    We find these new provisions, which list information required to be 
submitted by applicants filing for SOAP assistance, are substantively 
identical to and no less effective than the counterpart Federal 
regulations at 30 CFR 795.7 and can be approved. In addition, we find 
that the proposed State revision satisfies that portion of our 732 
letter dated July 22, 1997, regarding inadequate SOAP application 
requirements.
    17.6.a. Qualified Laboratories.
    The State proposes to amend its definition of qualified laboratory. 
These laboratories provide services under SOAP. This provision is 
amended by adding the word ``institution'' between the words ``private 
consulting firm'' and ``or analytical laboratory.'' In addition, the 
following words are being added immediately following the words ``or 
analytical laboratory:''

    That can provide the required determination of a probable 
hydrologic consequences or statement of results of test borings or 
core samplings or other services as specified under the Small 
Operator Assistance Program and that is * * *--

    As amended, subdivision 17.6.a. provides as follows:

    17.6.a. General. A qualified laboratory means a designated 
public agency, private consulting firm, institution, or analytical 
laboratory that can provide the required determination of a probable 
hydrologic consequences or statement of results of test borings or 
core samplings or other services as specified under the Small 
Operator Assistance Program and that is approved by the Department 
of Environmental Protection as a SOAP contractor.

    The Federal requirements at 30 CFR 795.9 provide the requirements 
concerning SOAP program services and data requirements. We find that as 
amended, the definition of qualified laboratory at subdivision 17.6.a. 
is substantively identical to and no less effective than the 
counterpart Federal definition of ``qualified laboratory'' at 30 CFR 
795.3.
    The Federal definition of qualified laboratory at 30 CFR 795.3 
provides that a qualified laboratory must be capable of providing the 
services identified at 30 CFR 795.3, ``or other services as specified 
at 30 CFR 795.9 under the Small Operator Assistance Program and that 
meets the standards of section 795.10.'' The amended definition of 
qualified laboratory at subdivision 17.6.a does not contain the 
specific citation as to the location in the West Virginia program of 
the ``other services'' that a qualified laboratory must be capable of 
providing. However, some of the other services offered under SOAP are 
specified in the West Virginia program at W. Va. Code 22-3-9(b). 
Therefore, we find that the lack of a specific citation at subdivision 
17.6.a as to the location of the ``other services as specified under 
the Small Operator Assistance Program,'' does not render the definition 
of ``qualified laboratory'' less effective than the counterpart Federal 
definition. However, not all

[[Page 38186]]

services offered under SOAP at 30 CFR 795.9 are yet identified at W.Va. 
Code 22-3-9(b). As requested through our 732 letter dated July 22, 
1997, the State still needs to amend its SOAP rules at section 17 to 
include all services provided under 30 CFR 795.9.
    In addition, the State definition of ``qualified laboratory'' lacks 
a counterpart to the Federal requirement that a ``qualified 
laboratory'' must meet the standards of 30 CFR 795.10 concerning 
qualified laboratories. However, subdivision 17.6.b, concerning basic 
qualifications for laboratories or contractors, provides that to 
qualify for designation as a qualified laboratory, the laboratory or 
contractor must demonstrate compliance with the requirements specified 
at CSR 38-2-17.6.b and 17.6.c. These provisions are the State 
counterparts to the Federal requirements at 30 CFR 795.10. Therefore, 
we find that the lack of a specific counterpart at subdivision 17.6.a 
to the Federal requirement that a ``qualified laboratory'' meet the 
standards of 30 CFR 795.10 does not render the State definition of 
``qualified laboratory'' less effective than the counterpart Federal 
definition.
    For all the reasons stated above, we find that the State's 
definition of qualified laboratory at subsection 17.6.a is no less 
effective than the Federal definition at 30 CFR 795.3 and can be 
approved. In addition, we find that the proposed State revision 
satisfies that portion of our 732 letter dated July 22, 1997, regarding 
qualified laboratory. As West Virginia complies with the requirement to 
amend section 17 to identify all the program services as provided under 
30 CFR 795.9, those additional services will automatically fall within 
the requirement that they be performed by a qualified laboratory since 
the definition approved here includes all services provided under SOAP.

IV. Summary and Disposition of Comments

Public Comments

    No public comments were received in response to our request for 
comments from the public on the proposed amendment.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on June 
14, 2002, and August 7, 2002, we requested comments on these amendments 
from various Federal agencies with an actual or potential interest in 
the West Virginia program (Administrative Record Numbers WV-1314 and 
WV-1321, respectively). By letters dated July 11, 2002, and September 
20, 2002, the U.S. Department of Labor's Mine Safety and Health 
Administration (MSHA) responded (Administrative Record Numbers WV-1320 
and WV-1331). MSHA stated that it finds no changes or issues that 
impact upon coal miners' health and safety and that there is no 
conflict with MSHA regulations.
    In addition, the U.S. Department of the Interior's Fish and 
Wildlife Service (USFWS) responded to our request for comments on 
September 10, 2002 (Administrative Record Number WV-1329). USFWS 
provided comments pursuant to the Fish and Wildlife Coordination Act 
and the Endangered Species Act. These comments, however, are targeted 
at sections of the amendment that are not being considered for approval 
in this rulemaking, but that have been addressed in our decision on WV-
096 or will be considered at a later date for WV-089. State program 
amendment WV-096 and the discussion of any comments received on it were 
the subject of a notice published in the Federal Register on December 
3, 2002 (67 FR 71832-71840). We have not rendered a final decision on 
State program amendment WV-089, which was submitted in response to 
several outstanding 732 letters. Any comments pertaining to those 
outstanding requirements will be addressed when the final rule is 
published in the Federal Register at a later date.
    USFWS also identified typographical errors in two subsections that 
are not being revised in this amendment. At CSR 38-2-7.4.b.1.C.6, the 
citation ``7.4.d.1.C.4'' should be ``7.4.b.1.C.4.'' At CSR 38-2-
7.4.b.1.D.12, the citation ``7.4.d.1.D'' should be ``7.4.b.1.D.'' We 
will inform WVDEP about these typographical errors.

Environmental Protection Agency (EPA) Concurrence/Comments

    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.). On June 14, 2002, we requested concurrence and 
comments from EPA on House Bill 4163 (Administrative Record Numbers WV-
1313). On August 7, 2002, we requested comments from EPA on Senate Bill 
2002 (Administrative Record Number WV-1321).
    EPA responded to both requests by letter dated October 28, 2002 
(Administrative Record Number WV-1340). EPA concurred on the proposed 
amendments and provided comments on sections of the amendment that are 
not being considered for approval in this rulemaking. As discussed 
above, their comments have been addressed in our decision on WV-096 or 
will be considered at a later date in our decision on WV-089.

V. OSM's Decision

    Based on the above findings, we are approving the amendments to the 
West Virginia program as submitted to us on April 9, 2002, and June 19, 
2002. In addition, the following required program amendments are 
satisfied and can be removed: 30 CFR 948.16 (rrrr), (ssss), (tttt), 
(uuuu), (vvvv), (xxxx), (yyyy), (zzzz), (bbbbb), (ccccc), (ddddd), 
(eeeee), (ggggg), (hhhhh), (mmmmm), (nnnnn), and (qqqqq).
    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 regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. Procedural Determinations

Executive Order 12630--Takings

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

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),

[[Page 38187]]

decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

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

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
This final rule applies only to the West Virginia program and therefore 
does not affect tribal programs.

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

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

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

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

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act

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

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the analysis performed 
under various laws and executive orders for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 18, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR Part 948 is amended as 
set forth below:

PART 948--WEST VIRGINIA

0
1. The authority citation for Part 948 continues to read as follows:

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


0
2. Section 948.15 is amended in the table by adding a new entry in 
chronological order by ``Date of publication of final rule'' to read as 
follows:


948.15  Approval of West Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
                                     Date of        Citation/description
 Original amendment submission    publication of        of appproved
             date                   final rule           provisions
------------------------------------------------------------------------
 
                              * * * * * * *
April 9, 2002.................  June 27, 2003....  CSR 38-2: 2.31.b.1;
June 19, 2002.................  .................   2.43; 2.108;
                                                    3.1.i.2; 3.25.a.4;
                                                    3.30.d.8;
                                                    3.32.e;5.4.e.2;
                                                    7.4.a.1;
                                                    7.4.b.1.C.5;
                                                    7.4.b.1.D.1;
                                                    7.4.b.1.G.1;
                                                    7.4.b.1.G.3;
                                                    7.4.b.1.H.2;
                                                    7.4.b.1.I.2;
                                                    7.4.b.1.I.3;
                                                    7.5.i.1.B;
                                                    7.5.i.3.Q; 7.5.i.10;
                                                    7.5.j.3.A;
                                                    7.5.j.6.A;
                                                    7.5.j.6.B; 7.5.o.2;
                                                    8.2.b.3;
                                                    10.4.a.1.D;10.6.b.3;
                                                    11.2.b; 11.4.a.1;
                                                    11.4.a.4; 11.5.
                                                    (deletion of
                                                    former); 11.5.a;
                                                    12.5.e; 14.12.a.1;
                                                    17.3.b.2; 17.4;
                                                    17.6; and 22.7.a.
------------------------------------------------------------------------


[[Page 38188]]


0
3. Section 948.16 is amended by removing and reserving paragraphs 
(rrrr), (ssss), (tttt), (uuuu), (vvvv), (xxxx), (yyyy), (zzzz), 
(bbbbb), (ccccc), (ddddd), (eeeee), (ggggg), (hhhhh), (mmmmm), (nnnnn), 
and (qqqqq).

[FR Doc. 03-16353 Filed 6-26-03; 8:45 am]
BILLING CODE 4310-05-P