[Federal Register Volume 69, Number 177 (Tuesday, September 14, 2004)]
[Proposed Rules]
[Pages 55375-55377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20661]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-121-FOR]


Virginia Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendments.

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SUMMARY: We are announcing receipt of a proposed amendment to the 
Virginia regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). The program amendment 
revises Virginia's Coal Surface Mining Reclamation Regulations 
concerning performance bonds furnished pursuant to the Coal Surface 
Mining Reclamation (Pool Bond) Fund. The amendment is intended to 
conform the performance bond release procedures that are applied to 
Virginia's ``alternative bonding system'' with bond release procedures 
used for other performance bonds. The amendment is also intended to 
clarify language regarding minimum bond amounts set for permits.

DATES: We will accept written comments on this amendment until 4 p.m. 
(local time), on October 14, 2004. If requested, we will hold a public 
hearing on the amendment on October 9, 2004. We will accept requests to 
speak at hearing until 4 p.m. (local time), on September 29, 2004.

ADDRESSES: You may submit comments, identified by VA-121-FOR, by any of 
the following methods:
     E-mail: [email protected]. Include VA-121-FOR in the subject 
line of the message.
     Mail/Hand Delivery: 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.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading in the 
SUPPLEMENTARY INFORMATION section of this document. You may also 
request to speak at a public hearing by any of the methods listed above 
or by contacting the individual listed under FOR FURTHER INFORMATION 
CONTACT.
    Docket: You may review copies of the Virginia program, this 
amendment, a listing of any scheduled public hearings, and all written 
comments received in response to this document at the addresses listed 
below during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Big Stone Gap Field Office.
    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. E-mail: [email protected].
    Mr. Leslie S. Vincent, Virginia Division of Mined Land Reclamation, 
P.O. Drawer 900, Big Stone Gap, Virginia 24219, Telephone: (540) 523-
8100. E-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big 
Stone Gap Field Office; Telephone: (540) 523-4303. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the Virginia Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the 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

[[Page 55376]]

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 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 conditions of approval of the Virginia program in the 
December 15, 1981, Federal Register (46 FR 61088). You can also find 
later actions concerning Virginia's program and program amendments at 
30 CFR 946.12, 946.13, and 946.15.

II. Discussion of the Proposed Amendment

    By letter dated July 20, 2004 (Administrative Record Number VA-
1036) the Virginia Department of Mines, Minerals and Energy (DMME) 
submitted an amendment to the Virginia program. In its letter, the DMME 
stated that Virginia is amending its regulations at 4 Virginia 
Administrative Code (VAC) 25-130-801.17, to conform the performance 
bond release procedures that are applied to bonds furnished pursuant to 
the Coal Surface Mining Reclamation (Pool Bond) Fund, Virginia's 
``alternative bonding system,'' with bond release procedures used for 
other performance bonds. The DMME stated that the amendment will allow 
use of a phased bond release for all permitted coal mine sites in 
Virginia. The DMME stated that the amendment also clarifies language 
regarding minimum bond amounts set for permits.
    The Virginia regulations at 4 VAC 25-130 part 801 concern the Coal 
Surface Mining Reclamation Fund, penalties, and self-bonding. The 
proposed amendment revises 4 VAC 25-130-801.17, concerning bond release 
application, and 4 VAC 25-130-801.18, concerning criteria for bond 
release, as follows:
4 VAC 25-130-801.17
    This provision is amended by adding and deleting language at 4 VAC 
25-130-801.17(a), by deleting 4 VAC 25-130-801.17(a)(1) through (a)(3), 
and by deleting 4 VAC 25-130-801.17(b) through (e). As amended, 4 VAC 
25-130-801.17 provides as follows:
    (a) The permittee participating in the Pool Bond Fund, or any 
person authorized to act upon his behalf, may file an application with 
the division [Division of Mined Land Reclamation] for the Phase I, II 
or III release of the bond furnished in accordance with 4 VAC 25-130-
801.12(b) for the permit area or any applicable increment thereof. The 
bond release application, the procedural requirements and the released 
percentages shall be consistent with the release criteria of 4 VAC 25-
130-800.40. However, in no event shall the total bond of the permit be 
less than the minimum amounts established pursuant to Section 45.1-241 
and 45.1-270.3.B of the Virginia Coal Surface Mining Control and 
Reclamation Act prior to completion of Phase III reclamation of the 
entire permit area.
4 VAC 25-130-801.18
    This provision is amended by adding and deleting language at 4 VAC 
25-130-801.18(a) and (b), by deleting 4 VAC 25-130-801.18(c), and by 
amending and re-codifying existing 4 VAC 25-130-801.18(d) as 4 VAC 25-
130-801.18(c). As amended, 4 VAC 25-130-801.18 provides as follows:
    (a) The division shall release bond furnished in accordance with 
Section 45.1-241 and 45.1-270.3 of the Virginia Coal Surface Mining 
Control and Reclamation Act through the standards specified at 4 VAC 
25-130-800.40 upon receipt of an application for Phase I, II or III 
release.
    (b) The division shall terminate jurisdiction for the permit area, 
or any increment thereof upon approval of the Phase III bond release 
for that area.
    (c) In the event a forfeiture occurs the division may, after 
utilizing the available bond monies, utilize the Fund as necessary to 
complete reclamation liabilities for the permit area.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Virginia program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We may not consider or respond to your 
comments when developing the final rule if they are received after the 
close of the comment period (see DATES). We will make every attempt to 
log all comments into the administrative record, but comments delivered 
to an address other than the Big Stone Gap Field Office may not be 
logged in.

Electronic Comments

    Please submit Internet comments as an ASCII, Word file avoiding the 
use of special characters and any form of encryption. Please also 
include ``Attn: SATS NO. VA-121-FOR'' and your name and return address 
in your Internet message. If you do not receive a confirmation that we 
have received your Internet message, contact the Big Stone Gap Field 
office at (540) 523-4303.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (local time), on 
September 29, 2004. If you are disabled and need special accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person

[[Page 55377]]

listed under FOR FURTHER INFORMATION CONTACT. All such meetings will be 
open to the public and, if possible, we will post notices of meetings 
at the locations listed under ADDRESSES. We will make a written summary 
of each meeting a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12630--Takings

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

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

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

Executive Order 13132--Federalism

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

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

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
The basis for this determination is our decision is on a State 
regulatory program and does not involve a Federal regulation involving 
Indian lands.

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

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

National Environmental Policy Act

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

Paperwork Reduction Act

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

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act

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

Unfunded Mandates

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

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 4, 2004.
Tim L. Dieringer,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 04-20661 Filed 9-13-04; 8:45 am]
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