[Federal Register Volume 77, Number 133 (Wednesday, July 11, 2012)]
[Rules and Regulations]
[Pages 40793-40796]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16847]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-119-FOR; OSM-2012-0013]


West Virginia Regulatory Program

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

ACTION: Interim final rule with request for comments.

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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 
(WVSCMRA) to effect changes concerning the special reclamation tax and 
apportionment of this tax. This amendment is intended to increase and 
extend the special reclamation tax. Moreover, a specific portion of 
this tax will be allocated to the Special Reclamation Water Trust Fund 
for the purpose of designing, constructing and maintaining water 
treatment systems on forfeited mine sites. We are approving the 
reinstatement of the special reclamation tax, its increase to twenty-
seven and nine-tenths cents per ton of clean coal mined, as well 
fifteen cents of the amount collected allocated for deposit to the 
Special Reclamation Water Trust Fund.

DATES: Effective Date: This rule is effective July 11, 2012. Comment 
Date: We will accept written comments until 4 p.m., EST August 10, 
2012. If requested, we will hold a public hearing on August 6, 2012. We 
will accept requests to speak until 4 p.m., EST on July 26, 2012.

ADDRESSES: You may submit comments by any of the following two methods:
     Federal eRulemaking Portal: www.regulations.gov. The 
proposed rule has been assigned Docket ID: OSM-2012-0013. If you would 
like to submit comments through the Federal eRulemaking Portal, go to 
www.regulations.gov and follow the instructions.
     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-119-FOR) with your 
written comments.
    Instructions: All submissions received must include the agency 
Docket ID (OSM-2012-0013) 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.
    Docket: The interim rule and any comments that are submitted may be 
viewed via the internet at www.regulations.gov. Look for Docket ID OSM-
2012-0013. 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. Email: 
chfo@osmre.gov.
West Virginia Department of Environmental Protection, Division of 
Mining and Reclamation, Mr. Thomas L. Clark, 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. Email: 
chfo@osmre.gov.

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 April 27, 2012, and received on April 27, 2012, 
(Administrative Record Number WV-

[[Page 40794]]

1577), 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 Senate 
Bill 579, relative to West Virginia's alternative bonding system. As 
detailed in WVDEP's April 27, 2012, Transmittal Letter, ``Senate Bill 
579 amends Sec.  22-3-11 of the Code of West Virginia to implement 
actuarial recommendations relating to the continuing fiscal viability 
of the Special Reclamation Fund.'' Subsection 22-3-11(h)(1) of the 
WVSCMRA is substantively amended by increasing the amount of the 
special reclamation tax to twenty-seven and nine-tenths cents per ton 
of clean coal mined. The former special reclamation tax, effective as 
of July 1, 2009, required remittance of fourteen and four-tenths cents 
per ton of clean coal mined; the collection of this tax is eliminated 
and replaced with the aforementioned amount. Additionally, the amended 
language requires fifteen cents per ton of the collected twenty-seven 
and nine-tenths cents per ton, be deposited in the Special Reclamation 
Water Trust Fund (the Fund). Historically, although not codified, WVDEP 
allocated three cents per ton of clean coal mined to finance the Fund, 
resulting in a severely underfunded account. It is forecasted that the 
imposition of the new rate enumerated in Senate Bill 579 will ease the 
strain placed on the Fund.
    Formatting and style changes have been effectuated via Senate Bill 
579. Former paragraph (h)(1) is revised to add a caption entitled: 
Rate, deposits and review; additionally, the paragraph has been 
segregated to add four subparts that incorporate all the former 
language.

III. OSM's Findings

    Effective upon publication of this interim rule, we are approving, 
on an interim basis, the revisions to Section 22-3-11(h)(1) of the 
WVSCMRA, which reinstates and increases the Special Reclamation Tax and 
adds revenue for the Fund, provided that the special reclamation tax 
may not be reduced until the Special Reclamation Fund and the Fund have 
sufficient moneys to meet the reclamation responsibilities required in 
this section. Since these revisions increase revenues to the State's 
alternative bonding system, we find that they do not render the State's 
program less effective than the Federal regulations at 30 CFR 
800.11(e). Because our approval of these revisions is interim in 
nature, and in order to satisfy the public participation requirements 
for approval or disapproval of State program amendments, we will accept 
comments on the reinstatement and increase in the Special Reclamation 
Tax and the additional funds allocated to the Fund 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 Section 22-3-1(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 Section 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 it would delay the start of the collection of the increased 
Special Reclamation Tax. Enrolled Senate Bill 579 becomes effective 
under State law on July 1, 2012, and the public interest in the 
accomplishment of prompt and thorough reclamation of bond forfeiture 
sites, including water treatment of discharges from the sites, will be 
adversely affected if the twenty-seven and nine-tenths cents per ton 
special reclamation tax cannot be collected on and after that effective 
date. As explained above, the public will have an opportunity to 
comment on the reinstatement and increase in the special reclamation 
tax and the allocation of fifteen cents per ton of the tax allocated to 
the Fund, before we make a final decision.

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, email address, or 
other personal identifying information in your comment, you should be 
aware that the 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. EST on July 26, 
2012. If you are disabled and need reasonable 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 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 April 27, 2012. To implement this decision, we are 
amending the Federal regulations at 30 CFR part 948, which

[[Page 40795]]

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'' 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 previously had a special reclamation tax of $0.144 per ton of 
clean coal mined. The tax is used to reclaim bond forfeiture sites in 
the State. On March 30, 2012, the Governor signed into law a bill that 
reinstated and increased the special reclamation tax to $0.279 per ton 
of clean coal mined and allocated $0.15 of that tax to the Fund for the 
purpose of designing, constructing and maintaining water treatment 
systems at bond forfeiture sites. Upon full implementation, the 
increased tax rate of $0.279 will yield approximately $ 36 million 
annually in additional revenue for bond forfeiture reclamation. The 
$0.15 per ton tax that is allocated to the Fund will provide 
approximately $20 million annually for water treatment at bond 
forfeiture sites. The tax is payable by all coal operators mining coal 
in West Virginia, regardless of size.

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: May 9, 2012.
Thomas D. Shope,
Regional Director, Appalachian Region.

    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:


[[Page 40796]]


    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.

* * * * *

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                                       Date of
 Original amendment submission     publication of            Citation/description of approved provisions
              date                   final rule
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                                                  * * * * * * *
April 27, 2012.................  July 11, 2012.....  W. Va. Code 22-3-11(h)(1) (interim approval).
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[FR Doc. 2012-16847 Filed 7-10-12; 8:45 am]
BILLING CODE 4310-05-P