[Federal Register Volume 70, Number 215 (Tuesday, November 8, 2005)]
[Proposed Rules]
[Pages 67654-67657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22194]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-108-FOR]


West 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 amendment.

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SUMMARY: We are announcing receipt of a proposed amendment to the West 
Virginia regulatory program (the West Virginia program) under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
West Virginia proposes to revise its Code of State Regulations (CSR) 
concerning surety bonds. The amendment is intended to provide the State 
with an alternative source of reliable financial information about the 
surety, and to allow sureties that are licensed and in good financial 
condition but are not currently listed with the U.S. Department of the 
Treasury as an acceptable surety of Federal bonds to provide surety 
bonds to the coal industry in West Virginia. The proposed amendment was 
authorized by the West Virginia Secretary of State as an emergency rule 
under the State's Administrative Procedures Act.

DATES: We will accept written comments on this amendment until 4 p.m. 
(local time), on December 8, 2005. If requested, we will hold a public 
hearing on the amendment on December 5, 2005. We will accept requests 
to speak at a hearing until 4 p.m. (local time), on November 23, 2005.

ADDRESSES: You may submit comments, identified by WV-108-FOR, by any of 
the following methods:
     E-mail: [email protected]. Include WV-108-FOR in the subject 
line of the message;
     Mail/Hand Delivery: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, Office of Surface Mining Reclamation and 
Enforcement, 1027 Virginia Street, East, Charleston, West Virginia 
25301; or
     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 West Virginia program, this 
amendment, a listing of any scheduled public hearings, and all written 
comments received in response to this document at the addresses listed 
below during normal business hours, Monday through Friday, excluding 
holidays. You may also receive one free copy of this amendment by 
contacting OSM's Charleston Field Office listed below.
    Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of

[[Page 67655]]

Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East, 
Charleston, West Virginia 25301, Telephone: (304) 347-7158. E-mail: 
[email protected].
    West Virginia Department of Environmental Protection, 601 57th 
Street, SE, Charleston, WV 25304, Telephone: (304) 926-0490.
    In addition, you may review a copy of the amendment during regular 
business hours at the following locations:
    Office of Surface Mining Reclamation and Enforcement, Morgantown 
Area Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West 
Virginia 26507, Telephone: (304) 291-4004. (By Appointment Only)
    Office of Surface Mining Reclamation and Enforcement, Beckley Area 
Office, 313 Harper Park Drive, Suite 3, Beckley, West Virginia 25801, 
Telephone: (304) 255-5265.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, Telephone: (304) 347-7158. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:

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

I. Background on the West Virginia Program

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

II. Description of the Proposed Amendment

    By letter dated October 17, 2005 (Administrative Record Number WV-
1441), the West Virginia Department of Environmental Protection (WVDEP) 
submitted an amendment to its program under SMCRA (30 U.S.C. 1201 et 
seq.). The amendment consists of a proposed revision to CSR 38-2-
11.3.a.3 concerning surety bonds, a briefing document, an emergency 
rule justification, which includes an affidavit that was submitted in 
support of the emergency rule package, and a decision by the Secretary 
of State dated October 11, 2005, approving the emergency rule.
    In its submittal of this amendment, the WVDEP stated that its 
current rule at CSR 38-2-11.3.a.3 requires that after July 1, 2001, a 
surety must be recognized by the Treasurer of the State as holding a 
certificate of authority from the United States Department of the 
Treasury as an acceptable surety on Federal bonds (otherwise referred 
to as being ``T-Listed''). The WVDEP stated that the original standard 
was adopted to address concerns about the financial solvency of 
sureties providing reclamation bonds in West Virginia. The WVDEP did 
not have the necessary resources or expertise to regularly and timely 
monitor the financial condition of sureties doing business in West 
Virginia. However, a surety that is T-Listed is required to provide, on 
a regular basis, financial information to the U.S. Department of 
Treasury, which reviews this information and provides its findings to 
state regulatory agencies. While this information provided by the 
Department of Treasury has been helpful, WVDEP stated, this restriction 
has prevented sureties that are not T-Listed, and that are otherwise in 
good financial condition, from providing reclamation bonds in West 
Virginia. The WVDEP stated that this, along with other reasons, has 
adversely impacted the market for reclamation bonds in West Virginia. 
Further, WVDEP stated, since a surety must have at least two years 
experience providing surety bonds before it can be T-Listed, a new 
insurance company or an existing insurance company that has not 
previously issued surety bonds cannot offer surety bonds in West 
Virginia.
    The WVDEP stated that the proposed amendment to CSR 38-2-11.3.a.3 
not only addresses the concerns noted above by providing an alternative 
source of reliable financial information about the surety, but it also 
allows sureties that are licensed and in good financial condition but 
are not T-Listed to provide surety bonds in West Virginia.
    The WVDEP stated that an ``emergency'' exists under the State's 
Administrative Procedures Act because there is presently a great demand 
for reclamation bonds from the coal industry in West Virginia that is 
not being met by the limited number of sureties currently offering 
surety bonds in West Virginia. As a result, alternative more expensive 
means are being used by coal companies to comply with the State's 
bonding requirements. Among other things, this has greatly restricted 
the availability of capital for the development of new coal mines and 
the creation of new jobs. The State acknowledges that at a time when 
coal is so important to West Virginia's economy, this dearth of surety 
bonds is having a significant negative impact on West Virginia's coal 
industry. The proposed amendment to 38 CSR 2 is thus necessary ``to 
prevent substantial harm to the public interest.''
    Specifically, West Virginia proposes the following amendment.

CSR 38-2-11.3.a.3 Surety

    The existing rule currently provides that surety received after 
July 1, 2001, must be recognized by the treasurer of the state as 
holding a current certificate of authority from the U.S. Department of 
the Treasury as an acceptable surety on Federal bonds. This provision 
is proposed to be amended by adding new language at the end of the 
existing requirement. As amended, CSR 38-2-11.3.a.3 provides as 
follows:

    11.3.a.3. Surety received after July 1, 2001 must: (i) Be 
recognized by the treasurer of state as holding a current 
certificate of authority from the United States Department of the 
Treasury as an acceptable surety on federal bonds; Or (ii) submit to 
the Secretary proof that the surety holds a valid license issued by 
the basis a certificate of good standing or other evidence 
demonstrating that the surety remains licensed or otherwise in good 
standing with the West Virginia Insurance Commissioner and the 
insurance regulator of its domiciliary state and within four (4) 
years take all steps necessary to obtain a certificate of authority 
from the United States Department of the Treasury as an acceptable 
surety on federal bonds.

    The WVDEP filed the emergency rule with the West Virginia Secretary 
of State on September 21, 2005. The Secretary of State approved the 
rule on an emergency basis pursuant to W. Va. Code 29A-3-15a on October 
11, 2005.
    The WVDEP also filed a legislative rule containing the same 
language with the Secretary of State on September 21, 2005 
(Administrative Record Number WV-1442). At the same time, the State 
announced a public comment period on the legislative rule. The public 
comment period commenced on September 21, 2005, and closed on October 
27, 2005. A public hearing was held at the WVDEP office in Kanawha City 
prior to the close of the comment period.

[[Page 67656]]

    On October 3, 2005, WVDEP provided OSM a copy of the proposed rule 
for informal review. Unlike the State's existing surety bond provisions 
at CSR 38-2-11.3.a.1 and the Federal surety bond requirements at 30 CFR 
800.20(a), OSM notified the State that the proposed revision at CSR 38-
2-11.3.a.3 did not appear to require the surety to be licensed to do 
business in the State. To resolve this concern and to make additional 
clarifications without altering the purpose or intent of either the 
emergency or the legislative rule, on October 14, 2005 (Administrative 
Record Number WV-1443) OSM recommended that the language in both rules 
be revised as follows:

    11.3.a.3. Any company that executes surety bonds in the State 
after July 1, 2001, must: (i) be recognized by the treasurer of the 
state as holding a current certificate of authority from the United 
States Department of the Treasury as an acceptable surety on federal 
bonds by being included on the Treasury Department's listing of 
approved sureties (Department Circular 570); or (ii) submit proof to 
the Secretary that it holds a valid license issued by the West 
Virginia Insurance Commissioner, and agree to submit to the 
Secretary on at least a quarterly basis a certificate of good 
standing from the West Virginia Insurance Commissioner and such 
other evidence from the insurance regulator of its domiciliary 
state, if other than West Virginia, demonstrating that it is also in 
good standing in that state. Companies not included on the United 
States Treasury Department's listing of approved sureties must 
diligently pursue application for listing, submit evidence on a 
semi-annual basis demonstrating that they are pursuing such listing, 
and within four (4) years, obtain a certificate of authority from 
the United States Department of the Treasury as an acceptable surety 
on federal bonds.

    State officials agreed that while the recommended technical 
revisions offered by OSM were better and further clarified the intent 
of their initial rule, they needed to wait until after the close of 
their comment period before making any changes to the rule. The WVDEP 
intends to submit these changes and any additional revisions to OSM 
after the close of the State's comment period on October 27, 2005. This 
provision is expected to be in the form of both an emergency and a 
legislative rule. If the revised rules contain language identical to 
the language recommended by OSM and included herein, that revision will 
be acted upon by OSM in this rulemaking. If substantive changes beyond 
or other than those recommended by OSM are included in the revised 
rules, we may need to reopen the comment period.
    The legislative rule will be submitted to the Legislative 
Rulemaking Review Committee after the close of the comment period, and 
it is to be acted upon by the West Virginia Legislature during the 
upcoming 2005-2006 regular legislative session. If that rule is adopted 
with the identical language recommended by OSM as described above, no 
further action will be required by OSM, and it will become part of West 
Virginia's permanent regulatory program upon submission by the State.
    Given that an emergency situation exists in West Virginia with 
regard to surety bonds and to avoid any unnecessary delays in approving 
the proposed State rule, OSM is requesting comments on both the 
proposed State rule and the suggested revisions to that rule as 
described above. Any changes adopted by the State after the close of 
its public comment period will result in the revision to both its 
emergency and legislative rules. As mentioned above, any substantive 
changes in the proposed State rules that go beyond those described 
herein will be subject to further rulemaking.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether these amendments satisfy the applicable program 
approval criteria of 30 CFR 732.15. If we approve these revisions they 
will become part of the West Virginia program.

Written Comments

    Send your written 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 Charleston 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. WV-108-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 Charleston Field 
office at (304) 347-7158.

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 
November 23, 2005. 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 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.

[[Page 67657]]

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

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

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

National Environmental Policy Act

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

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State 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: October 21, 2005.
Brent Wahlquist,
Regional Director, Appalachian Region.
[FR Doc. 05-22194 Filed 11-7-05; 8:45 am]
BILLING CODE 4310-05-P