[Federal Register Volume 74, Number 139 (Wednesday, July 22, 2009)]
[Rules and Regulations]
[Pages 36113-36116]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16796]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-115-FOR; OSM-2009-0006]


West Virginia Regulatory Program

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

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: We are approving, on an interim basis, an 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 revised its Surface Coal Mining and Reclamation Act to 
effect changes concerning its alternative bonding system. The tax 
provisions of the amendment are intended to increase and extend the 
special reclamation tax, subject to biennial review by the legislature, 
and remove the additional tax. We are approving the increase and 
extension of the special reclamation tax, at the rate of fourteen and 
four-tenths cents per ton of clean coal mined, for deposit in the 
Special Reclamation Fund and the Special Reclamation Water Trust Fund, 
on an interim basis, with our approval becoming effective upon 
publication of this interim rule.

DATES: Effective Date: This rule is effective July 22, 2009. Comment 
Date: We will accept written comments until 4 p.m., local time August 
21, 2009. If requested, we will hold a public hearing on August 17, 
2009. We will accept requests to speak until 4 p.m., local time on 
August 6, 2009.

ADDRESSES: You may submit written comments by any of the following two 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
The proposed rule has been assigned Docket ID: OSM-2009-0006. If you 
would like to submit comments through the Federal eRulemaking Portal, 
go to http://www.regulations.gov and do the following. Click on the 
``Advanced Docket Search'' button on the right side of the screen. Type 
in the Docket ID OSM-2009-0006 and click the ``Submit'' button at the 
bottom of the page. The next screen will display the Docket Search 
Results for the rulemaking. If you click on OSM-2009-0006, you can view 
the proposed rule and submit a comment. You can also view supporting 
material and any comments submitted by others.
     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. Please include the rule identifier (WV-115-FOR) with your 
written comments.
    Instructions: All submissions received must include the agency 
Docket ID (OSM-2009-0006) for this rulemaking. For detailed 
instructions on submitting comments and additional information on the 
rulemaking process, see ``IV. Public Comment Procedures'' 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.

[[Page 36114]]

    Docket: The interim rule and any comments that are submitted may be 
viewed over the internet at http://www.regulations.gov. Look for Docket 
ID OSM-2009-0006. In addition, 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 
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, 604 Cheat Road, Suite 150, Morgantown, West Virginia 
26508, 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. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the West Virginia Program
II. Description and Submission of the Amendment
III. OSM's Findings
IV. Public Comment Procedures
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. Description and Submission of the Amendment

    By letter dated May 22, 2009, and received on May 28, 2009 
(Administrative Record Number WV-1518), 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 includes changes to 
the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA) as 
contained in Enrolled Committee Substitute for Senate Bill 600 
concerning the State's alternative bonding system.
    Committee Substitute for Senate Bill 600 amended Section 22-3-11 of 
the WVSCMRA. As stated in the State's May 22, 2009, letter transmitting 
the amendment, Committee Substitute for Senate Bill 600 ``amends 
Chapter 22-3-11 of the Code of West Virginia to implement actuarial 
recommendations relating to the continuing fiscal viability of the 
Special Reclamation Fund. The legislation consolidates what has been 
known as ``the 7-and-7.4 tax'' (the 7.4 [cents] portion of which is 
currently subject to annual renewal) into a 14.4 cent[s] tax per ton of 
clean coal mined, reviewable every two years by the Legislature''.
    Subsection 22-3-11(h)(1) of the WVSCMRA is amended by deleting the 
year 2008, and adding language to provide that, ``For tax periods 
commencing on and after July 1, 2009, every person conducting coal 
surface mining shall remit a special reclamation tax * * *''
    Former subparagraph (A) is revised by deleting language which 
provides that the special reclamation tax be remitted for the initial 
period of twelve months, ending June 30, 2009, and the word ``seven'' 
is deleted. As modified, the special reclamation tax is increased from 
seven and four-tenths to fourteen and four-tenths cents per ton of 
clean coal mined.
    Former subparagraph (B) is amended by deleting language which 
provides that ``[A]n additional seven cents per ton of clean coal 
mined, the proceeds of which shall be deposited in the Special 
Reclamation Fund.'' This revision eliminates the additional seven cents 
tax which previously funded the Special Reclamation Fund.
    Furthermore, language is deleted which provides that the additional 
seven cents tax shall be reviewed and, if necessary, adjusted annually 
by the Legislature upon the recommendation of the council pursuant to 
the provisions of section seventeen, article one of this chapter. This 
provision is modified to provide that, ``Beginning with the tax period 
commencing on July 1, 2009, and every two years thereafter, the special 
reclamation tax shall be reviewed by the Legislature to determine 
whether the tax should be continued:''
    Specifically, the amended language relating to the special 
reclamation tax now reads as follows:

    Chapter 22-3-11. Bonds; amount and method of bonding; bonding 
requirements; special reclamation tax and funds; prohibited acts; 
period of bond liability.
    (h)(1) For tax periods commencing on and after July 1, 2009, 
every person conducting coal surface mining shall remit a special 
reclamation tax of fourteen and four-tenths cents per ton of clean 
coal mined, the proceeds of which shall be allocated by the 
secretary for deposit in the Special Reclamation Fund and the 
Special Reclamation Water Trust Fund. The tax shall be levied upon 
each ton of clean coal severed or clean coal obtained from refuse 
pile and slurry pond recovery or clean coal from other mining 
methods extracting a combination of coal and waste material as part 
of a fuel supply. Beginning with the tax period commencing on July 
1, 2009, and every two years thereafter, the special reclamation tax 
shall be reviewed by the Legislature to determine whether the tax 
should be continued: Provided, That the tax may not be reduced until 
the Special Reclamation Fund and Special Reclamation Water Trust 
Fund have sufficient moneys to meet the reclamation responsibilities 
of the state established in this section.

III. OSM's Findings

    Effective upon publication of this interim rule, we are approving, 
on an interim basis, the revisions to Subsection 22-3-11(h)(1) of the 
WVSCMRA, which increase and extend the special reclamation tax and 
remove the additional tax. Since these revisions continue revenues into 
the State's alternative bonding system at the same rate as previously 
approved, we find that they do not render the West Virginia program 
less effective than the Federal regulations at 30 CFR 800.11(e). 
Because our approval of these revisions

[[Page 36115]]

is interim, and in order to satisfy the public participation 
requirements for approval or disapproval of State program amendments, 
we will accept comments on the increase and extension of the special 
reclamation tax in accordance with Section IV of this Federal Register 
notice. Following our review of the comments received, we will issue a 
final rule announcing the Director's final decision on the revisions to 
Subsection 22-3-11(h)(1) of the WVSCMRA that are the subject of this 
interim rule.
    Pursuant to the Administrative Procedure Act at 5 U.S.C. 
553(b)(3)(B), we find that good cause exists to approve the revisions 
to Subsection 22-3-11(h)(1) of the WVSCMRA on an interim basis without 
notice and opportunity for comment, because to require notice and 
opportunity for comment now would be contrary to the public interest in 
that the special reclamation tax is due to expire on June 30, 2009, and 
it would delay the start of the collection of the increased special 
reclamation tax. Enrolled Committee Substitute for Senate Bill 600 
becomes effective under State law on July 1, 2009, and the public 
interest in the accomplishment of prompt and thorough reclamation of 
bond forfeiture sites, including water treatment of discharges 
therefrom, will be adversely affected if the 14.4 cents per ton special 
reclamation tax cannot be collected on and after that effective date. 
In any event, as explained above, the public will have an opportunity 
to comment on the reinstatement and extension of the special 
reclamation tax, before we make a final decision on the proposed 
changes.

IV. 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 comments to OSM at one of the 
addresses given above. Your 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) or sent to an address other 
than those listed above (see ADDRESSES).
    Availability of Comments: Before including your address, phone 
number, e-mail address, or other personal identifying information in 
your comment, you should be aware that your entire comment--including 
your personal identifying information--may be made publicly available 
at any time. While you can ask us in your comment to withhold your 
personal identifying information from public review, we cannot 
guarantee that we will be able to do so.
    Public Hearing: If you wish to speak at the public hearing, contact 
the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. 
(Eastern time), on August 6, 2009. If you are disabled and need 
reasonable accommodation 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 there is only limited interest in participating 
in a public hearing, 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 Docket for this rulemaking.

V. OSM's Decision

    Based on the above findings, we are approving on an interim basis, 
the specific revisions outlined above to the West Virginia program as 
provided to us on May 28, 2009. 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 interim rule effective 
immediately. Section 503(a) of SMCRA requires that the State's program 
demonstrate that the State has the capability of carrying out the 
provisions of the Act and meeting its purposes. Making this rule 
effective immediately will expedite that process. SMCRA requires 
consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on an analysis of the State submission.

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''

[[Page 36116]]

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 has a special reclamation tax of $0.074 per ton of clean coal 
mined which is due to expire on June 30, 2009. The tax is used to 
reclaim bond forfeiture sites in the State. On May 4, 2009, the 
Governor signed into law a bill that will reinstate and increase the 
special reclamation tax to $0.144 per ton of clean coal mined. The 
additional $0.07 tax is being removed, and the previous one-year 
expiration period for the special reclamation tax is being deleted. 
Under the amended language, the Legislature will review the special 
reclamation tax every two years to determine whether the tax should be 
continued. The tax is payable by all operators mining coal in West 
Virginia, regardless of size. The tax, which is an important source of 
revenue for the State's alternative bonding system, is used to 
supplement reclamation bond amounts in the event of forfeiture.

Small Business Regulatory Enforcement Fairness Act

    Based upon the above analysis and discussion, we have determined 
that 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.

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: June 15, 2009.
Thomas D. Shope,
Regional Director, Appalachian Region.

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 by adding a new entry to the table in 
chronological order by ``Date of publication of final rule'' to read as 
follows:


Sec.  948.15  Approval of West Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
                                     Date of        Citation/description
 Original amendment submission    publication of        of approved
             date                   final rule           provisions
------------------------------------------------------------------------
 
                              * * * * * * *
May 28, 2009..................  July 22, 2009....  W. Va. Code 22-3-
                                                    11(h)(1) (interim
                                                    approval).
------------------------------------------------------------------------

[FR Doc. E9-16796 Filed 7-21-09; 8:45 am]
BILLING CODE 4310-05-P