85838 Federal Register / Vol. 88, No. 236 / Monday, December 11, 2023 / Rules and Regulations 

(d) Subject 

Joint Aircraft System Component (JASC) 

Code 7230, Turbine Engine Compressor 

Section; 7250, Turbine Section. 

(e) Unsafe Condition 

This AD was prompted by a manufacturer 

investigation that revealed that certain highpressure turbine (HPT) rotor stage 1 disks 

(HPT stage 1 disks) and a certain compressor 

rotor stages 6–10 spool were manufactured 

from material suspected to have reduced 

material properties due to iron inclusion. The 

FAA is issuing this AD to prevent fracture 

and subsequent uncontained failure of 

certain HPT stage 1 disks and a certain 

compressor rotor stages 6–10 spool. The 

unsafe condition, if not addressed, could 

result in uncontained debris release, damage 

to the engine, and damage to the aircraft. 

(f) Compliance 

Comply with this AD within the 

compliance times specified, unless already 

done. 

(g) Required Actions 

(1) For engines with an installed HPT stage 

1 disk having a part number (P/N) and serial 

number (S/N) identified in Compliance, 

paragraph 3.E., Tables 1 through 2, of CFM 

Service Bulletin (SB) LEAP–1B–72–00–0392– 

01A–930A–D, Issue 002, dated September 5, 

2023 (CFM SB LEAP–1B–72–00–0392–01A– 

930A–D, Issue 2): At the next piece-part 

exposure of the HPT stage 1 disk, or before 

exceeding the applicable cycles since new 

(CSN) threshold identified in Compliance, 

paragraph 3.E., Tables 1 through 2, of CFM 

SB LEAP–1B–72–00–0392–01A–930A–D, 

Issue 2, whichever occurs first after the 

effective date of this AD; or if the applicable 

CSN threshold has been exceeded as of the 

effective date of this AD, within 50 flight 

cycles (FCs) from the effective date of this 

AD; remove the HPT stage 1 disk from 

service and replace with a part eligible for 

installation. 

(2) For engines with an installed 

compressor rotor stages 6–10 spool having a 

P/N and S/N identified in Compliance, 

paragraph 3.E., Table 3, of CFM SB LEAP– 

1B–72–00–0392–01A–930A–D, Issue 2: At 

the next piece-part exposure of the 

compressor rotor stages 6–10 spool, or before 

exceeding the applicable CSN threshold 

identified in Compliance, paragraph 3.E., 

Table 3, of CFM SB LEAP–1B–72–00–0392– 

01A–930A–D, Issue 2, whichever occurs first 

after the effective date of this AD; or if the 

applicable CSN threshold has been exceeded 

as of the effective date of this AD, within 50 

FCs from the effective date of this AD; 

remove the compressor rotor stages 6–10 

spool from service and replace with a part 

eligible for installation. 

(h) Definition 

For the purpose of this AD, a ‘‘part eligible 

for installation’’ is an HPT stage 1 disk or 

compressor rotor stages 6–10 spool that does 

not have a P/N and S/N identified in 

Compliance, paragraph 3.E., Tables 1 through 

3 of CFM SB LEAP–1B–72–00–0392–01A– 

930A–D, Issue 2. 

(i) Installation Prohibition 

After the effective date of this AD, do not 

install an HPT stage 1 disk or compressor 

rotor stages 6–10 spool that has a P/N and S/ 

N identified in Compliance, paragraph 3.E., 

Tables 1 through 3 of CFM SB LEAP–1B–72– 

00–0392–01A–930A–D, Issue 2 on any 

engine. 

(j) Credit for Previous Actions 

This paragraph provides credit for the 

actions required by paragraph (g) of this AD, 

if those actions were performed prior to the 

effective date of this AD by following the 

Accomplishment Instructions specified in 

CFM SB LEAP–1B–72–00–0392–01A–930A– 

D, Issue 001, dated March 7, 2023. 

(k) Alternative Methods of Compliance 

(AMOCs) 

(1) The Manager, AIR–520 Continued 

Operational Safety Branch, FAA, has the 

authority to approve AMOCs for this AD, if 

requested using the procedures found in 14 

CFR 39.19. In accordance with 14 CFR 39.19, 

send your request to your principal inspector 

or local Flight Standards District Office, as 

appropriate. If sending information directly 

to the manager of the AIR–520 Continued 

Operational Safety Branch, send it to the 

attention of the person identified in 

paragraph (l)(1) of this AD and email to: 

ANE-AD-AMOC@faa.gov. 

(2) Before using any approved AMOC, 

notify your appropriate principal inspector, 

or lacking a principal inspector, the manager 

of the local flight standards district office/ 

certificate holding district office. 

(l) Related Information 

(1) For more information about this AD, 

contact Mehdi Lamnyi, Aviation Safety 

Engineer, FAA, 2200 South 216th Street, Des 

Moines, WA 98198; phone: (781) 238–7743; 

email: mehdi.lamnyi@faa.gov. 

(2) Service information identified in this 

AD that is not incorporated by reference is 

available at the addresses specified in 

paragraphs (m)(3) and (4) of this AD. 

(m) Material Incorporated by Reference 

(1) The Director of the Federal Register 

approved the incorporation by reference 

(IBR) of the service information listed in this 

paragraph under 5 U.S.C. 552(a) and 1 CFR 

part 51. 

(2) You must use this service information 

as applicable to do the actions required by 

this AD, unless the AD specifies otherwise. 

(i) CFM International, S.A. Service Bulletin 

LEAP–1B–72–00–0392–01A–930A–D, Issue 

002, dated September 5, 2023. 

(ii) [Reserved] 

(3) For service information identified in 

this AD, contact CFM International, S.A., GE 

Aviation Fleet Support, 1 Neumann Way, M/ 

D Room 285, Cincinnati, OH 45215; phone: 

(877) 432–3272; email: 

aviation.fleetsupport@ge.com. 

(4) You may view this service information 

at FAA, Airworthiness Products Section, 

Operational Safety Branch, 1200 District 

Avenue, Burlington, MA 01803. For 

information on the availability of this 

material at the FAA, call (817) 222–5110. 

(5) You may view this material at the 

National Archives and Records 

Administration (NARA). For information on 

the availability of this material at NARA, 

visit www.archives.gov/federal-register/cfr/ 

ibr-locations or email fr.inspection@nara.gov. 

Issued on November 20, 2023. 

Ross Landes, 

Deputy Director for Regulatory Operations, 

Compliance & Airworthiness Division, 

Aircraft Certification Service. 

[FR Doc. 2023–27092 Filed 12–8–23; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 946 

[SATS No. VA–127–FOR; Docket ID: OSM– 

2015–0003; S1D1S SS08011000 SX064A000 

223S180110; S2D2S SS08011000 

SX064A000 22XS501520] 

Virginia Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule; approval of 

amendment with deferrals. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSMRE), are approving, with two 

deferrals, an amendment to the Virginia 

regulatory program (the Virginia 

program) under the Surface Mining 

Control and Reclamation Act of 1977 

(SMCRA or the Act). This amendment 

includes revisions to Virginia’s statutes 

and/or coal mining regulations that: 

remove self-bonds from the types of 

performance bond instruments 

authorized; adjust the financing of its 

alternative bonding system (ABS), 

which is in the form of a bond pool; and 

revise proof of publication requirements 

involving permit applications and bond 

release applications. We are deferring 

our decision on the removal of a 

regulation requiring certain actions by 

self-bonded operators when a condition 

affects their financial status and the 

proposed monetary cap on Virginia’s 

pool bond fund. 

DATES: The effective date is January 10, 

2024. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael Castle, Acting Field Office 

Director, Charleston Field Office. 

Telephone: (859) 260–3900, Email: osmchfo@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Virginia Program 

II. Submission of the Amendment 

III. OSMRE’s Findings 

IV. Summary and Disposition of Comments 

V. OSMRE’s Decision 


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VI. Statutory and Executive Order Reviews 

I. Background on the Virginia Program 

A. Background—General: Subject to 

OSMRE’s oversight, section 503(a) of the 

Act permits a State to assume primacy 

for the regulation of surface coal mining 

and reclamation operations on nonFederal and non-Indian lands within its 

borders by demonstrating that its 

program includes, among other things, 

State laws and regulations that govern 

surface coal mining and reclamation 

operations in accordance with the Act 

and consistent with the Federal 

regulations. 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. With this 

amendment, Virginia is requesting 

changes to the bonding program we 

previously approved as described 

below. 

B. Background—Virginia’s Bonding 

Program: SMCRA section 509, 

Performance Bonds, 30 U.S.C. 1259, and 

the Federal regulations at 30 CFR part 

800, Bond and Insurance Requirements 

for Surface Coal Mining and 

Reclamation Operations under 

Regulatory Programs, prescribe the 

minimum bonding requirements for 

filing and maintaining bonds and 

insurance for coal mining and 

reclamation operations under regulatory 

programs. We approved Virginia’s 

initial bonding provisions under its 

regulatory program on September 21, 

1982 (47 FR 41557). We have approved 

other revisions to Virginia’s bonding 

program, including those published on 

January 18, 1983 (48 FR 2123), February 

28, 1983 (48 FR 8271), December 27, 

1983 (48 FR 56949), December 31, 1987 

(52 FR 49403), February 2, 1990 (55 FR 

3588), August 5, 1991 (56 FR 37153), 

and May 29, 2012 (77 FR 31486). 

Virginia’s bonding program is 

authorized under Title 45.1 of the Code 

of Virginia, Chapter 19, Virginia Coal 

Surface Mining Control and 

Reclamation Act of 1979 (VACSMCRA), 

Article 2, Regulation of Mining Activity, 

and Article 5, Coal Surface Mining 

Reclamation Fund, and implemented 

through its regulations at Title 4, 

Conservation and Natural Resources, of 

the Virginia Administrative Code. 

Virginia’s bonding program includes 

provisions involving self-bonds and an 

alternative bonding system in the form 

of a bond pool, both subjects of this 

document, as summarized below. 

1. Virginia’s Bonding Program 

Options: Virginia’s program includes 

two options for permittees to post a 

performance bond: 

a. Full-Cost Bond: If a permittee elects 

not to participate in the bond pool or 

does not qualify to become a participant 

in the pool, the permittee is required to 

submit an adequate full-cost bond for 

each bonded area covering the entire 

(full) cost of reclamation for coal mining 

operations. The various types of 

performance bonds permitted by 

Virginia to satisfy full-cost bond 

requirements include: surety bonds; 

collateral bonds (including certificates 

of deposit and letters-of-credit); escrow 

accounts; combined surety/escrow 

accounts; a combination of these 

bonding methods; and self-bonds, 

which Virginia has stopped accepting in 

anticipation of our approval of this 

amendment. The amount is dependent 

upon the reclamation requirements of 

the approved permit and associated 

reclamation plan cost estimate. In no 

case may the total bond initially posted 

for the entire area under one permit be 

less than $10,000. 

b. Alternative Bonding System (ABS): 

In lieu of requiring each permittee to 

submit permit-specific full-cost 

performance bonds for every coal 

mining operation, Virginia has an ABS 

in the form of a bond pool. (In Virginia 

this is referred to as the Pool Bond 

Fund, but to maintain consistency with 

our nomenclature in State Program 

Amendments and other OSMRE 

literature, we will refer to it as the 

‘‘bond pool’’ or ‘‘bond pool fund’’ 

unless we are specifically referencing 

the text of Virginia statutes or 

regulations.) The ABS is designed to 

provide funding, if necessary, to carry 

out reclamation plan requirements in 

the event of forfeiture. Participation in 

the ABS is voluntary and requires an 

operator to submit an application to 

participate. Acceptance into the bond 

pool is based on the applicant’s 

financial standing and reclamation 

record. Other restrictions apply, 

including those involving a review of 

ownership, control, and violation 

history. 

Further, in order to participate in the 

ABS, an operator must post an 

underlying financial security in the 

form of a performance bond. The 

performance bond can be in the form of 

any bond type approved by Virginia. 

The amount of the underlying financial 

security is determined by the greater of 

either a per-acre sum or a stated 

minimum, but is not tied to the 

estimated cost of reclamation. This 

underlying financial security results in 

a bond calculation that is less than the 

amount required under a full-cost bond, 

which considers the estimated cost of 

reclamation in its calculation. 

Various sources of funding make up 

the bond pool fund account (an interestbearing account referred to as the Coal 

Surface Mining Reclamation Fund or 

the ‘‘Fund’’), which is used to 

supplement the underlying financial 

security. These sources include entrance 

fees, a reclamation tax based upon coal 

production, special assessments, 

interest, and civil penalty collections. 

Before 2014, the reclamation tax was 

collected from Fund participants 

commencing with and running from the 

date of the coal production, processing, 

or loading from those operations under 

a permit for a period of one year. When 

the quarterly Fund balance (including 

interest earned) was less than $1.75 

million, participants paid the following 

amounts on a quarterly basis into the 

Fund according to the type of permit: 

$0.04/ton of coal extracted/produced for 

surface mining; $0.03/ton for deep 

mining; and $0.015/ton for preparation 

or loading facilities. When any quarterly 

Fund balance was greater than $2 

million, payments would cease until 

any quarterly Fund balance was less 

than $1.75 million. The Fund is used for 

the following purposes only: (1) 

reclaiming permit areas covered by the 

Fund in the event of bond forfeiture 

(after the underlying financial security 

is used); and (2) covering administrative 

costs of the Fund. The Fund is 

administered by the Virginia 

Department of Mines, Minerals and 

Energy (DMME), now known as the 

Virginia Department of Energy (see 

section II, Submission of the 

Amendment, indicating that we will 

continue to refer to DMME for the 

purpose of this amendment to maintain 

consistency with the provisions Virginia 

submitted). As of August 31, 2021, the 

Fund had a balance of approximately 

$10,688,000. 

Virginia’s Reclamation Fund Advisory 

Board (RFAB), previously known as the 

Pool Bond Fund Advisory Committee 

(PBFAC), consists of five members and 

is responsible for formulating 

recommendations to Virginia’s Director 

of the DMME (the Director) concerning 

oversight of the general operation of the 

Fund. The RFAB reports biannually to 

the Director and to the Governor on the 

status of the Fund and makes 

recommendations to the Director 

involving regulations or changes for the 

administration or operation of the Fund. 


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The Director has the discretion to adopt 

the recommendations of the RFAB 

through regulatory action. 

2. Self-Bond: Before 2014, Virginia’s 

program accepted self-bonds (a bond 

without separate surety) as the financial 

security for full-cost bonds and bonds 

under the bond pool. In 2014, through 

legislative action, Virginia ceased 

accepting self-bonds as an acceptable 

form of bond for new permits and new 

increments as discussed in section II of 

this document. As of August 31, 2021, 

there are 20 permits with some form of 

self-bonding, with 19 of these permits 

using self-bonds to meet the minimum 

bonding required to participate in the 

bond pool. These 19 permits use selfbonds to cover reclamation costs before 

the Fund would need to provide 

additional funding for reclamation 

efforts. These self-bonds are held by one 

operator/permittee. 

3. Virginia Action following OSMRE 

Review of the Virginia Bonding 

Program: In response to our January 22, 

2011, report summarizing our review of 

Virginia’s full-cost bonding program 

(Administrative Record No. VA 2037), 

Virginia sent us a letter dated February 

10, 2011 (Administrative Record No. VA 

2038), announcing its plans to initiate a 

risk assessment review of its ABS that 

would be conducted by a neutral third 

party. Virginia procured actuarial 

services from Pinnacle Actuarial 

Resources, and the company submitted 

its final report to Virginia on May 29, 

2012 (Pinnacle Report), recommending 

changes to the ABS to keep it financially 

sound (Administrative Record No. VA 

2022). 

C. Background—Proof of Publication: 

As part of our oversight role, we 

reviewed Virginia’s permitting process 

for permit renewal applications and, in 

a September 2014 report entitled 

Processing of Permit Renewal 

Applications, noted that following the 

required public advertisement that an 

application had been submitted, proof 

that those advertisements had been 

published either were not being 

submitted or were not being made part 

of the application package within four 

weeks after the last date of publication, 

as required by Virginia’s regulations. We 

recommended Virginia consider 

revising its regulations so that Virginia’s 

electronic permitting process does not 

violate Virginia’s approved program 

(Administrative Record No. VA 2044). 

II. Submission of the Amendment 

Following the 2012 actuarial review 

of the ABS and to improve the operation 

of the ABS, in March 2014, Virginia 

enacted Senate Bill 560 (S.B. 560) and 

House Bill 710 (H.B. 710) to amend 

certain provisions of the VACSMCRA. 

See 2014 Va. Acts chs. 111, 135. The 

enactment of this legislation effected the 

following changes to VACSMCRA: (1) it 

removed an applicant’s ability to submit 

its own bond without separate surety, 

thereby removing the self-bonding 

option; and (2) it revised the ABS by 

changing the parameters of entrance fees 

and reclamation tax payments. Virginia 

now seeks to amend its program to 

reflect these changes to VACSMCRA, as 

codified through revised statutes in 

Title 45.1, Chapter 19 of the Code of 

Virginia (Virginia Code or Va. Code) and 

changes to its implementing regulations 

at Title 4, Agency 25, Chapter 130 of the 

Virginia Administrative Code (VAC). 

By letter dated June 12, 2015, Virginia 

sent us an amendment to its program 

under SMCRA (Administrative Record 

No. VA 2024). With this amendment, 

Virginia seeks to revise Va. Code 45.1– 

241, 45.1–270.3, and 45.1–270.4, as 

amended by 2014 Va. Acts chs. 111, 135 

(Administrative Record No. VA 2021). 

Virginia also seeks to revise its 

administrative regulations at Title 4 of 

the VAC that involve the option to selfbond and the ABS fees and taxes. 

In addition to the revisions to 

Virginia’s bonding program, Virginia 

also seeks to revise its permitting 

regulations by modifying its procedures 

related to the submission of proof that 

public notice had been published in a 

newspaper of general circulation for 

permit applications and bond release 

applications. Virginia also proposed 

certain non-substantive editorial 

statutory and regulatory revisions that 

involve clarification of syntax, 

renumbering of paragraphs, and 

reference changes, but do not change the 

administrative regulations 

substantively. The full text of the 

program amendment is available at 

www.regulations.gov, searchable by the 

Docket ID Number referenced at the top 

of this document. 

We announced receipt of the 

proposed amendment in the October 22, 

2015, Federal Register (80 FR 63933) 

(Administrative Record No. VA 2026). 

In the same document, we opened the 

public comment period and provided an 

opportunity for a public hearing or 

meeting on the adequacy of the 

amendment. The public comment 

period ended on November 23, 2015. On 

November 17, 2015, we received a letter 

from an organization requesting an 

extension to the public comment period 

(Administrative Record No. 2027). We 

granted that request in a letter dated 

November 20, 2015 (Administrative 

Record No. VA 2028), reopened the 

public comment period, and announced 

the extension in the February 8, 2016, 

Federal Register (81 FR 6479) 

(Administrative Record No. VA 2029). 

The public comment period ended on 

March 9, 2016. No request for public 

hearing was received. Public comments 

that were received are addressed in the 

Public Comments section of this 

document. 

In a letter dated October 24, 2016, 

Virginia clarified that while the 

submission included a revision that 

removed escrow bonds from its 

approved list of types of acceptable 

performance bond at 4 VAC 25–130– 

800.23, it was not their intent to do so. 

(Administrative Record No. VA 2040). 

Therefore, escrow bonds are not being 

addressed in this document. 

In a letter dated April 24, 2017, 

Virginia notified us of a change affecting 

its initial submission (Administrative 

Record No. VA 2041). The original 

submission included changes to the 

reclamation tax payments under Va. 

Code 45.1–270.4, Assessment of 

Reclamation Tax Revenues for Fund, 

which were initially set to expire on 

July 1, 2017. See Enactment 2 of 2014 

Va. Acts chs. 111, 135. After submitting 

the amendment, Virginia enacted H.B. 

2200, repealing the expiration date and 

thereby making the 2014 changes 

permanent. See 2017 Va. Acts Ch. 7. We 

base our findings on the permanent 

status of the 2014 statutory revisions at 

Va. Code 45.1–270.4. 

Most recently, during a 2021 special 

legislative session, the Virginia 

legislature enacted Senate Bill 1453 

(S.B. 1453) (approved March 24, 2021) 

and House Bill 1855 (H.B. 1855) 

(approved April 7, 2021). These bills 

amended the Virginia Code to, among 

other things, rename the Department 

from the ‘‘Department of Mines 

Minerals and Energy’’ to the 

‘‘Department of Energy,’’ and recodify 

and reorganize Virginia’s mining laws 

from Title 45.1, Mines and Mining, to 

Title 45.2, Mines, Minerals, and Energy, 

effective October 1, 2021. See 2021 Va. 

Acts, Sp. S. I, chs. 387, 532; see also Va. 

Code 45.2–1000—45.2–1051 

(recodification of VACSMCRA). Virginia 

has not requested that OSMRE review 

2021 Va. Acts, Sp. S. I, chs. 387, 532. 

This notification of our approval of 

certain amendments to Virginia’s 

regulatory program pertains only to the 

identified changes to Virginia’s program 

reflected in 2014 Va. Acts chs. 111, 135 

and 2017 Va. Acts Ch. 7 and does not 

address the 2021 enactment. For that 

reason, and for the sake of clarity, this 

document will refer to provisions of 

VACSMCRA as they were codified 

before October 1, 2021. For reference, 

Va. Code 45.1–241, –270.3, and –270.4 

discussed in this document now appear 


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at Va. Code 45.2–1016, –1045, and 

–1046, respectively. 

III. OSMRE’s Findings 

The following are the findings we 

made concerning the amendment under 

SMCRA and the Federal regulations at 

30 CFR 732.15 and 732.17. We are 

approving the amendment, with 

deferrals, as described below. 

A. Performance Bonds: Self-Bonding 

Virginia seeks to revise the following 

statutory and regulatory provisions 

related to self-bonding. 

1. Revised Statutes at Title 45.1 of the 

Virginia Code: Substantive changes to 

VACSMCRA as amended by 2014 Va. 

Acts chs. 111, 135 that involve selfbonding are described along with our 

findings. 

a. Va. Code 45.1–241, Performance 

Bonds: Virginia seeks to revise 

subsection C of this section, which 

addresses the type of performance bond 

acceptable to ensure that reclamation is 

completed during and after mining 

activities. The first sentence, which 

Virginia seeks to delete, allowed the 

operator to submit a self-bond without 

a separate surety when the applicant 

could meet certain requirements. The 

requirements involved demonstrating 

the existence of a suitable agent to 

receive service of process and a history 

of financial solvency and continuous 

operation. This revision eliminates the 

self-bonding provision of the law that 

was originally approved on December 

27, 1983. 

b. Va. Code 45.1–270.3, Initial 

Payments into Fund; Renewal 

Payments; Bonds: Virginia seeks to 

delete subsection C, which addresses 

the acceptance of a performance bond 

submitted without separate surety (selfbond) for underground mining and 

surface mining operations covered by 

the ABS. 

2. Revised Regulations at Title 4 of the 

Virginia Administrative Code (VAC): 

Virginia requests the following deletions 

from DMME’s administrative 

regulations at Chapter 130, Coal Surface 

Mining Reclamation Regulations. 

Virginia states that the deletions in 

Chapter 130 reflect the deletion of the 

statutory provisions at Va. Code 45.1– 

241 and 45.1–270.3 relating to selfbonding. 

a. 4 VAC 25–130–700.5, Definitions: 

Virginia seeks to delete the definitions 

of ‘‘cognovit note,’’ ‘‘indemnity 

agreement,’’ and ‘‘self-bond’’ to reflect 

the proposed deletion of the selfbonding provisions under 4 VAC 25– 

130–801 and Va. Code 45.1–241.C and 

45.1–270.3, as described above. 

b. 4 VAC 25–130–800.12, Form of the 

Performance Bond: We note that 

Virginia included 4 VAC–25–130– 

800.12 as part of the original submission 

but did not indicate any revision at this 

section. Virginia later confirmed its 

intent to remove subparagraph (f) (selfbond) from the list of prescribed types 

of allowable performance bond, 

reflecting the proposed deletion of the 

self-bonding provisions of VACSMCRA. 

c. 4 VAC 25–130–801.12, Entrance Fee 

and Bond: Virginia seeks to delete 

subsections (c) and (d) to reflect the 

proposed deletion of the self-bonding 

provisions of VACSMCRA. 

Subsection (c) provides that Virginia 

may accept the bond of an applicant of 

an underground mining operation 

without surety as provided by 4 VAC 

25–130–801.13 upon a showing of an 

applicant’s worth equivalent to $1 

million and certified by an independent 

certified public accountant (CPA) 

initially and annually. 

Subsection (d) provides that Virginia 

may accept the bond of an applicant of 

a surface mining operation or associated 

facility without separate surety if certain 

conditions are met (e.g., establishment 

of a suitable agent for service of process, 

satisfactory continuous operation and 

financial solvency, and submission of 

an indemnity agreement). 

d. 4 VAC 25–130–801.13, Selfbonding: Virginia seeks to delete this 

section to reflect the proposed deletion 

of the self-bonding provisions of 

VACSMCRA. 

Subsection (a) prescribes the 

requirements to designate a suitable 

agent for service of process, provide the 

name and address of the CPA who 

prepared the statement of the 

applicant’s net worth, and provide the 

location of the financial records that 

were used for the CPA’s statement. In 

addition, it provides the requirements 

for submitting an acceptable cognovit 

note. 

Subsection (b) prescribes the 

requirement to provide evidence 

indicating a history of satisfactory 

continuous operation and financial 

solvency. 

Subsection (c) requires that the CPA 

certification be updated to reflect prior 

obligations and self-bonding liabilities 

still in effect whenever a Fund 

participant applies for additional 

permit(s). 

Subsection (d) requires that whenever 

the conditions upon which the selfbond was approved no longer prevail, 

Virginia must require the posting of a 

surety or collateral bond before coal 

surface mining operations may 

continue. The permittee is responsible 

to immediately notify DMME of any 

change in total liabilities or total assets 

which would jeopardize the support of 

the self-bond. If permittees fail to have 

sufficient resources to support the selfbond, they are deemed to be without 

bond coverage and in violation of bond 

requirements. 

OSMRE’s Finding: Section 509(c) of 

SMCRA and its implementing 

regulations at 30 CFR 800.4(d), 

Regulatory Authority Responsibilities; 

800.5, Definitions; 800.12, Form of the 

Performance Bond; and 800.23, Selfbonding, permit a regulatory authority 

to accept different forms of performance 

bonds, including self-bonds, as a 

mechanism to ensure that funds will be 

available for completion of the 

reclamation plan if the work has to be 

performed by the regulatory authority in 

the event of a forfeiture. The regulatory 

authority may accept a self-bond 

without separate surety when the 

applicant demonstrates, to the 

satisfaction of the regulatory authority, 

the existence of a suitable agent to 

receive service of process and a history 

of financial solvency and continuous 

operation sufficient for authorization to 

self-insure or bond such amount. 

Changes in the coal market and coal 

mining industry have resulted in 

changes to the financial solvency of 

some coal companies and have 

highlighted the need to ensure adequate 

financial assurance exists to ensure the 

reclamation of disturbed mine lands. 

Therefore, it is prudent that Virginia 

examined its financial assurance 

program and reconsidered the types of 

performance bonds it will accept as a 

reclamation guarantee. While SMCRA 

authorizes a regulatory authority to 

accept a self-bond as financial 

assurance, it does not require a 

regulatory authority to do so. SMCRA 

provides a regulatory authority with 

discretion to implement more stringent 

requirements, such as implementing a 

financial assurance program that 

requires more security than that 

provided through a self-bond. We have 

determined that the elimination of selfbonding through deletions from sections 

45.1–241 and 45.1–270.3 of 

VACSMCRA does not make the Virginia 

program less stringent than SMCRA or 

less effective than the Federal 

regulations. Therefore, we approve these 

changes. 

We note this amendment requests the 

deletion of the definition of cognovit 

note, at 4 VAC 25–130–700.5, 

Definitions, which we previously 

approved for deletion under Virginia’s 

Program Amendment No. VA–126 on 

May 29, 2012. See 77 FR 31486, 31488. 

In that same document, we approved 

Virginia’s definition of indemnity 


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agreement, noting that the Federal 

regulations did not define the term, but 

that Virginia’s definition was consistent 

with how the Federal regulations used 

the term in the definitions of surety 

bond, collateral bond, and self-bond 

under 30 CFR 800.5. See id. at 31488. 

Therefore, we also see no effect to 

Virginia’s program from removing the 

definition of the term indemnity 

agreement and approve its deletion. 

Regarding the deletion of the term selfbond, we are approving the removal of 

this definition because it is consistent 

with Virginia’s request, and our 

approval, of the elimination of selfbonds as a financial assurance 

mechanism, thereby rendering the 

definition unnecessary. To the extent 

that some self-bonded operations 

remain in Virginia following this 

amendment, we consider any operative 

portions of these defined terms to be 

‘‘conditions upon which the self-bond 

was approved’’ under 4 VAC 25–130– 

801.13(d), explained below, and 

therefore to still apply to existing selfbonded operations subsequent to their 

deletion. Regarding the deletion of 4 

VAC 25–130–800.12(f), 801.12(c) and 

(d), and 801.13(a)–(c), we have 

determined that the changes to the VAC 

reflect changes to VACSMCRA that 

remove self-bonding from the Virginia 

program as described above. For the 

same reasons, the regulatory changes do 

not render the Virginia program less 

stringent than SMCRA or less effective 

than the Federal regulations, and so we 

are approving these changes. 

We are not approving the removal of 

4 VAC 25–130–801.13(d) at this time. 

This subsection requires the permittee 

to promptly notify Virginia of any 

condition affecting the permittee’s 

financial status and prescribes the 

subsequent action to be taken when 

such conditions exist. Because some 

operators remain self-bonded, Virginia’s 

request that the entire section on selfbonding be removed would mean that 

there would not be any regulations in 

place to address the action the operator 

or regulatory authority must take should 

a self-bonded permittee become 

insolvent or file for bankruptcy. The 

Federal regulations at 30 CFR 800.23(g) 

require that if, at any time during the 

period when a self-bond is posted, the 

financial conditions of the applicant or 

non-parent corporate guarantor change 

so that the conditions upon which the 

self-bond was approved no longer 

apply, the permittee must notify the 

regulatory authority immediately and 

post an alternate form of bond in the 

same amount as the self-bond within 90 

days after notification. If an adequate 

bond is not posted by the end of the 

period allowed, the permittee must 

cease coal extraction and comply with 

the provisions of 30 CFR 800.16(e). 

Paragraph (e)(2) of 30 CFR 800.16 

requires that in the event of bankruptcy, 

the permittee must be deemed to be 

without bond coverage and must be 

required to replace bond coverage 

within 90 days. If an adequate bond is 

not posted by the end of the 90-day 

period, the permittee is subject to the 

provisions of 30 CFR 816.132 or 

817.132, which address cessation of 

operations (temporary and permanent). 

Mining operations must not resume 

until the regulatory authority has 

determined that an acceptable bond has 

been posted. Subsection (d) of 4 VAC 

801.13, which Virginia seeks to delete, 

addresses the situation mentioned 

above. Without this subsection, there 

would not be any regulation that 

provides for immediate and corrective 

action, which would render Virginia’s 

administrative regulations less effective 

than 30 CFR 800.23(g) and its related 

regulations. 

We have determined that the 

subsection 4 VAC 25–130–801.13(d) 

cannot be removed until all previously 

approved self-bonds have either been: 

(1) lawfully released based on an 

accurate determination that the 

permittee has satisfactorily completed 

all reclamation obligations; or (2) 

replaced with an adequate substitute 

bond or set of bonds, each of which is 

backed by a qualified surety, adequate 

cash deposit, qualified government 

securities, qualified bank instruments, 

or an adequate combination of these 

forms of financial assurance/bond. 

Therefore, we are not approving the 

removal of subsection (d) at this time. 

B. Alternative Bonding System (ABS): 

Entrance Fees, Reclamation Taxes, and 

Fund Balance Determinations 

1. Revised Statutes at Title 45.1 of the 

Virginia Code: Substantive changes to 

VACSMCRA, as amended by 2014 Va. 

Acts chs. 111, 135 and 2017 Va. Acts 

Ch. 7, that involve the ABS (e.g., 

entrance fees, reclamation taxes, and 

Fund balance determinations) are 

described along with our findings. 

a. Va. Code 45.1–270.3, Initial 

Payments into Fund; Renewal 

Payments; Bonds: Virginia seeks to 

revise subsection A, which addresses 

entrance fee requirements for surface 

mining permittees participating in the 

Fund. Subsection A was revised to 

remove the references to subsections B 

and C of Va. Code 45.1–270.4, 

Assessment of Reclamation Tax 

Revenues for Fund. Subsections B and 

C of Va. Code 45.1–270.4 prescribe the 

Fund balance conditions upon which a 

reclamation tax will be collected from 

operators. Previously, the Fund balances 

used for determining the amounts of the 

entrance fees under Va. Code 45.1– 

270.3.A were the same as those used for 

determining the amount of reclamation 

taxes under Va. Code 45.1–270.4.B and 

C. The entrance fee payments and 

reclamation tax assessment were based 

on the same minimum and maximum 

balance limits of the Fund; the entrance 

fee or reclamation tax would be 

increased if the Fund was less than 

$1.75 million, and the entrance fee 

would be reduced and the reclamation 

taxes assessment would cease if the 

Fund balance was greater than $2 

million. However, since Virginia is 

changing the limits for reclamation tax 

assessment to $20 million, discussed in 

section B.1(b) below, the references to 

the tax limits at subsections B and C of 

Va. Code 45.1–270.4 no longer apply. 

Virginia is deleting the references to the 

tax limits at subsections B and C of Va. 

Code 45.1–270.4 while retaining the 

$1.75 million and $2 million Fund 

balances used to determine the amount 

of the entrance fee. 

Virginia also seeks to revise 

subsection A to add paragraphs (1) and 

(2) (which previously appeared under 

Va. Code 45.1–270.4.C), specifying how 

the Fund balance must be calculated. 

Under these paragraphs, planned 

expenditures are deducted from the 

Fund balance at the time the 

engineering cost estimate is prepared, 

and, if the actual expenditures are less 

than the engineering cost estimate, an 

adjustment (credit) is made to the Fund. 

OSMRE’s Finding: The deletion of 

cross-references to subsections B and C 

of Va. Code 45.1–270.4 does not change 

the entrance fee set forth in Va. Code 

45.1–270.3 as we last approved it on 

February 2, 1990 (55 FR 3588), and has 

no effect on Virginia’s program. 

Therefore, we are approving the 

deletions. Regarding the addition of 

paragraphs (1) and (2), we have 

determined that these are the same 

provisions we approved when they 

existed under section 45.1–270.4.C. See 

52 FR 49403 (December 31, 1987). 

Moving these paragraphs to section 

45.1–270.3.A has no substantive effect 

on implementation. Therefore, we are 

approving these additions. 

b. Va. Code 45.1–270.4, Assessment of 

Reclamation Tax Revenues for Fund: 

Virginia seeks to revise subsections B 

and C to: (1) delete the $1.75 million 

Fund balance threshold, below which 

the reclamation tax would be imposed 

on operators until the Fund reached $2 

million; (2) delete the $2 million Fund 

balance threshold, above which the 


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reclamation tax would cease until the 

Fund balance fell below $1.75 million; 

and (3) in place of these thresholds, 

Virginia seeks to revise subsections B 

and C to add a new Fund balance 

threshold of $20 million (herein referred 

to as a ‘‘cap’’), below which the 

reclamation tax would be imposed on 

operators, and above which the 

reclamation tax would cease. Further, 

these subsections were also changed to 

clarify that the Fund balance will be 

determined at the end of ‘‘each’’ 

calendar quarter, not ‘‘any’’ calendar 

quarter as previously provided, and 

delete paragraphs related to the 

calculation of the Fund balance, which 

are moved to Va. Code 45.1–270.3.A as 

summarized at section B.1.a. above. 

Virginia also seeks to delete a provision 

from subsection D that limits the 

collection of the reclamation tax to only 

the first year of commencement of coal 

production, processing, or loading from 

those operations covered under the 

permit, in effect imposing the 

reclamation tax for the duration of 

operations subject only to the Fund 

balance threshold of $20 million. 

OSMRE’s Finding: Section 509(c) of 

SMCRA provides that we may approve 

a regulatory authority’s ABS if it will 

achieve the objectives and purposes of 

the bonding program. Under SMCRA’s 

implementing regulations, set forth at 30 

CFR 800.11(e), an ABS must: (1) assure 

that the regulatory authority will have 

available sufficient money to complete 

the reclamation plan for any areas 

which may be in default at any time; 

and (2) provide a substantial economic 

incentive for the permittee to comply 

with all reclamation provisions. The 

changes submitted by Virginia alter its 

existing ABS’s ability to ensure the 

availability of sufficient money to 

complete reclamation. 

First, we caution that a bond pool, 

particularly in an uncertain coal market, 

brings inherent risks to participating 

permittees and to Virginia. If the 

number of bond pool members and the 

amount of coal produced in Virginia 

decline, the production fees placed on 

coal being produced will need to rise 

correspondingly to maintain a 

financially sound and stable bond pool 

fund. Second, we focused our findings 

on the review of the provisions of the 

ABS and Virginia’s ability to assure the 

objectives and purposes of the system 

are capable of being met. The actuarial 

recommendations were considered as 

part of the review. Subsequent oversight 

reviews of the ABS will be necessary to 

determine whether or not the ABS 

meets the provisions of 30 CFR 

800.11(e), including the changes 

approved with this amendment. Our 

findings of the changes to the Virginia 

Code related to reclamation tax 

collection and limits follow: 

• Balance Threshold: Regarding the 

reclamation tax assessment limits at Va. 

Code 45.1–270.4.B, we have determined 

that the deletion of the $1.75 million 

and $2 million Fund balance thresholds 

is a reasonable change to the ABS. Both 

SMCRA and the Federal regulations at 

30 CFR 800.11(e)(1) require that 

sufficient money be available to 

complete the reclamation plan for any 

areas which may be in default at any 

time, if reclamation must be completed 

by the regulatory authority. Deleting the 

$1.75 million and $2 million Fund 

thresholds increases the amount of 

funds available to complete the 

reclamation plan for any areas which 

may be in default at any time for 

permits that are bonded under the ABS 

system. Therefore, this deletion is 

consistent with 30 CFR 800.11(e)(1), and 

we are approving it. 

• Fund Cap: Virginia indicates that a 

$20 million cap on the Fund to 

determine reclamation tax payments, is 

considered a sufficient amount to 

support a system capable of providing 

sufficient resources to supplement any 

site specific underlying financial 

security that is held in the event of 

forfeiture at any given time. However, 

Virginia has not provided a justification 

for its determination of the cap amount 

or articulated a reasonable connection 

between its establishment and the 

amount of reclamation for which it is 

providing security. Neither SMCRA nor 

its implementing regulations allow 

regulatory authorities to set arbitrary 

limits on the amount of money to be 

made available for that purpose. 

Approving such a cap would not assure 

that the ABS will have available 

sufficient money to complete the 

reclamation plan for any areas which 

may be in default at any time and would 

be inconsistent with 30 CFR 

800.11(e)(1); therefore, we are deferring 

our decision on the provisions of 

sections 45.1–270.4.B and C to the 

extent that they impose a cap of $20 

million. We are approving the 

continuing collection of the tax beyond 

$2 million but deferring our decision on 

the cessation of the tax collection when 

the Fund reaches $20 million until such 

time as Virginia either takes legislative 

action to remove the cap from this 

statute or demonstrates that $20 million 

is a sufficient amount of money to 

complete the reclamation, including 

water treatment, on any area covered by 

the Fund. Our deferral has the effect of 

removing the cap upon the amount of 

money that can be in the Fund at any 

given time and will remain in effect 

until Virginia makes that demonstration. 

• One-Year Period: With regard to 

subsection D, we find removing the 

limitation for collecting reclamation 

taxes for a one-year period is prudent 

because it should increase monies 

deposited into the Fund and is 

consistent with the Pinnacle Report 

recommendation and the requirements 

of 30 CFR 800.11(e)(1). Therefore, we 

are approving this deletion. 

2. Revised Regulations at Title 4 of the 

Virginia Administrative Code (VAC): 

Virginia seeks to make the following 

changes to Chapter 130 of DMME’s 

administrative regulations. 

a. 4 VAC 25–130–801.11, 

Participation in the Pool Bond Fund: 

Virginia seeks to delete this section, 

stating that the section is duplicated 

under revised statutory provisions. 

Subsection (a) provides for voluntary 

participation in the Fund for a permittee 

that can demonstrate at least a threeyear history of compliance under the 

Act or any other comparable State or 

Federal Act. 

Subsection (b) requires all 

participants in the Fund pay entrance 

fees as required by 4 VAC 25–130– 

801.12(a) and comply with the 

applicable parts of Va. Code 45.1–241. 

Subsection (c) requires an irrevocable 

commitment by the permittee. 

Subsection (d) provides that all fees 

and taxes are nonrefundable. 

Subsection (e) permits the use of 

monies from the interest accrued to the 

Fund, as provided by Va. Code 45.1– 

270.5(B), to support one position for the 

administration of the Fund. If one 

position is deemed insufficient to 

ensure proper administration of the 

Fund, Virginia can obtain additional 

assistance if the Reclamation Fund 

Advisory Board concurs. 

OSMRE’s Finding: We have 

determined that 4 VAC 25–130–801.11 

subsection (a) is duplicated at Va. Code 

45.1–270.2.A; subsection (b) is 

duplicated at Va. Code 45.1–270.3; and 

subsection (c) is duplicated at Va. Code 

45.1–270.2.B. These provisions are 

unnecessary to give effect to the 

statutory requirements, and therefore we 

approve their deletion. Subsection (d) is 

not specifically duplicated in the 

Virginia Code, however, the 

requirements of Va. Code 45.1–270.2.B 

provide that participation in the Fund 

requires an irrevocable commitment on 

part of the permittee. This commitment 

involves the payment of fees and taxes; 

therefore, we have determined that the 

deletion of this subsection does not alter 

the program requirements. 

Regarding subsection (e), we note that 

while the administrative regulation 


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provides specifically that one 

administrative position is to be funded, 

Va. Code 45.1–270.5.B provides more 

generally that the interest accrued from 

the Fund may be used to properly 

administer the Fund. We also note that 

4 VAC 25–130–801.11(e) references the 

PBFAC, which was replaced by the 

RFAB in 1985. Given that there are no 

counterpart Federal regulations that 

determine the manner in which the 

administration of an ABS is to be 

funded, and the revision merely 

removes a discretionary limitation on 

the Fund’s administration, we have 

determined that the deletion of 4 VAC 

25–130–801.11(e) does not render the 

program inconsistent with SMCRA or 

the implementing regulations and we 

are approving the deletion. 

b. 4 VAC 25–130–801.12, Entrance 

Fee and Bond: Virginia seeks to revise 

subsection (a) by deleting the provisions 

that require an entrance fee of $5,000 

when the total balance of the Fund is 

determined to be less than $1.75 

million, an entrance fee of $1,000 when 

the total Fund balance is greater than $2 

million, and a renewal fee of $1,000 

from all permittees in the Fund at the 

time of renewal. Virginia seeks to delete 

these provisions, stating that they are 

duplicative of statutory provisions 

under Va. Code 45.1–270.3. 

Virginia also seeks to delete 

subsection (g), which requires that, if a 

mining operation is to be in temporary 

cessation for more than six months, 

mining operators must post bond equal 

to the total estimated cost of reclamation 

for all portions of the permitted site 

which are in temporary cessation prior 

to the date on which the operation has 

been in temporary cessation for more 

than six months. This subsection 

provides additional time to post bond 

for operations that were in temporary 

cessation as of July 1, 1991. It also 

provides that the amount of the bond 

required for each area bonded is 

determined by DMME in accordance 

with 4 VAC 25–130–800.14 and remains 

in effect throughout the remainder of 

the period during which the site is in 

temporary cessation. When the site 

returns to active status, the bond posted 

would be released, provided the 

permittee had posted bond pursuant to 

subsection (b) of this section. 

OSMRE’s Finding: With regard to 4 

VAC 25–130–801.12 subsection (a), we 

note that this regulation is duplicated at 

Va. Code 45.1–270.3.A and is not 

necessary to give effect to the statutory 

requirement; therefore, we are 

approving its deletion. With regard to 

subsection (g), we note that the 

regulation is duplicated in the statute at 

Va. Code 45.1–270.3.E, with the 

exception of the provision that states 

that the amount of the bond required for 

each permit area bonded under this 

subsection must be determined by 

DMME in accordance with 4 VAC 25– 

130–800.14. The provisions at 4 VAC 

25–130–800.14, Determination of Bond 

Amount (used for full-cost bond 

permits), require the following: 

subsection (a) requires bond 

calculations be determined considering 

the reclamation plan and the estimated 

cost of reclamation; subsection (b) 

requires a minimum bond of $10,000; 

and subsection (c) provides that liability 

insurance may be used to repair 

material damage resulting from 

subsidence. 

Va. Code 45.1–270.3.E requires full 

cost bond for these areas until the 

operation is back in active status and 

the operator can demonstrate alternative 

bonding requirements are met. The 

remainder of the approved Virginia 

program would still be relevant in 

determining the proper amount of fullcost bonding. Therefore, the specific 

reference to 4 VAC 25–130–800.14 being 

deleted by this revision to 4 VAC 25– 

130–801.12 does not affect the Virginia 

program as we have already approved it. 

Therefore, we are approving this 

deletion. 

c. 4 VAC 25–130–801.14, Reclamation 

Tax: Virginia seeks to delete this 

section, stating that these provisions are 

duplicated in revised statutory 

provisions. 

Subsection (a) provides that if, at the 

end of any calendar quarter, the total 

balance of the Fund (including interest) 

is less than $1.75 million, the 

reclamation tax assessment will be 

imposed. The reclamation tax amounts 

are provided as $.04/ton for surface 

mining operations; $.03/ton for 

underground mining; and $.015/ton for 

coal processing or preparation facilities, 

and are due within 30 days after the end 

of each taxable calendar quarter. 

Subsection (b) provides that if, at the 

end of any calendar quarter, the total 

balance of the Fund (including interest) 

exceeds $2 million, payments will be 

deferred until required by subsection 

(a). 

Subsection (c) provides that no 

permittee is required to pay the 

reclamation tax on more than 5 million 

tons produced per calendar year, 

regardless of the number of permits held 

by the permittee, except as provided in 

subsection (e). 

Subsection (d) applies to permittees 

holding more than one type of permit 

and the amount of reclamation tax to be 

paid in such situations. It provides that 

any permittee holding more than one 

type of permit will not pay more than 

$.055/ton on coal originally surface 

mined by that permittee or $.045/ton of 

coal originally deep mined 

(underground mined) by that permittee. 

It also provides that for permittees 

holding one permit upon which coal is 

both mined and processed or loaded, 

the permittee will not pay more than the 

tax applicable to the surface or 

underground mining operation. 

However, the permittee must pay $.015/ 

clean coal ton for all coal processed 

and/or loaded at the permit which 

originated from other permits during the 

calendar quarter. 

Subsection (e) provides that the 

reclamation tax is required during the 

one-year period commencing with and 

running from the date of 

commencement of coal production, 

processing, or loading from the permit. 

OSMRE’s Finding: We note that 

subsection (a) is duplicated at proposed 

Va. Code 45.1–270.4.A and B; 

subsection (b) is duplicated at Va. Code 

45.1–270.4.C; and subsections (c) and 

(d) are duplicated at proposed Va. Code 

45.1–270.4.D (which will be re-lettered 

from existing section 45.1–270.4.E). 

Subsection (e) is duplicated at existing 

Va. Code 45.1–270.4.D (which is 

proposed to be deleted). We note that 

the following sentence appears in the 

regulations under subsection (d)(2) but 

does not appear in the statute: 

‘‘However, the permittee shall pay the 

one and one-half cents per clean ton for 

all coal processed and/or loaded at the 

permit which originated from other 

permits during the calendar quarter.’’ 

We understand from Virginia’s 

submission that this provision 

duplicates Virginia’s statutes, including 

its current interpretation and 

implementation of the statutes, and 

therefore the deletion of this sentence 

would not affect Virginia’s current 

implementation of its program. We also 

note that there are no counterpart 

Federal regulations that direct the way 

a state’s ABS is to be funded. To the 

extent that the deletion of this sentence 

would cause Virginia to collect the 

reclamation tax in a different manner, 

our review would occur in the course of 

our oversight of the adequacy of the 

ABS system as a whole. For these 

reasons, deletion of 4 VAC 23–130– 

801.14 does not render the remaining 

Virginia provisions inconsistent with 

SMCRA or the Federal regulations and 

we are approving the deletion in its 

entirety. 

d. 4 VAC 25–130–801.16, 

Reinstatement to the Pool Bond Fund: 

Virginia seeks to delete this section, 

stating that it duplicates the revised 

statutory provisions. 


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Subsection (a) involves the 

consequences of an operator’s default on 

any reclamation obligation that causes 

the Fund to incur reclamation expenses. 

The permittee will no longer be eligible 

to participate in the Fund for any new 

permit or any permit renewal thereafter 

until full restitution for such default has 

been made to the Fund. The Director, 

along with the recommendation from 

the PBFAC (which was later replaced by 

the RFAB but not updated in this 

regulation), may require that the person 

seeking reinstatement pay interest at the 

composite rate determined by the 

Treasurer of Virginia compounded 

monthly. 

Subsection (b) requires compliance 

with subsection (a) before seeking new 

permits or renewal of existing ones. 

OSMRE’s Finding: We note that 

subsections (a) and (b) are duplicated at 

Va. Code 45.1–270.6.A, with two 

exceptions: (1) subsection (a) provides 

that the permittee will not be eligible to 

participate in the bond pool for any new 

permit or any permit renewal, whereas 

the statutory provisions do not mention 

permit renewal; and (2) subsection (a) 

provides the Director of DMME 

discretion to impose an interest 

payment upon the permittee if approved 

by the PBFAC, whereas the statutory 

provisions do not. 

Regarding the regulation’s reference to 

permit renewal, the statute at Va. Code 

45.1–270.6.A states in relevant part: 

‘‘An operator who has defaulted on any 

reclamation obligation and has thereby 

caused the Fund to incur reclamation 

expenses as a result thereof shall not be 

eligible to participate in the Fund 

thereafter until restitution for such 

default has been made.’’ (emphasis 

added). Moreover, Va. Code 45.1–270.2 

provides, in relevant part, that: 

‘‘Commencement of participation in the 

Fund, as to the applicable permit, shall 

constitute an irrevocable commitment to 

participate therein as to the applicable 

permit and for the duration of the coal 

surface mining operations covered 

thereunder.’’ We interpret this statutory 

language to bar all operators who trigger 

this condition from participation in the 

Fund, whether their permits are new or 

up for renewal, and any operator who 

defaults on a reclamation obligation and 

causes the Fund to incur expenses 

resulting therefrom is obligated to make 

restitution before a permit renewal can 

be approved. Therefore, Virginia’s 

proposal to delete 4 VAC 25–130– 

801.16(a) has no effect on Virginia’s 

program. 

Regarding interest payments, we note 

that Va. Code 45.1–270.6.A requires 

restitution by operators before they may 

be reinstated as a Fund participant. We 

understand from Virginia’s submission 

that this provision duplicates Virginia’s 

statutes, including its current 

interpretation and implementation of 

the statutes, and therefore the deletion 

of this sentence would not affect 

Virginia’s current implementation of its 

program seeking interest as part of 

restitution to the Fund. We also note 

that there are no counterpart Federal 

regulations that direct the manner in 

which a state would seek such 

restitution. To the extent that the 

deletion of this sentence would cause 

Virginia to collect less restitution by 

omitting interest, just as it could 

currently at the Director’s discretion, 

our review would occur in the course of 

our oversight of the adequacy of the 

ABS system as a whole. For these 

reasons, the deletion of 4 VAC 25–130– 

801.16 does not render the Virginia 

program inconsistent with SMCRA, and 

we are approving the deletion in its 

entirety. 

C. Public Participation and Proof of 

Publication Language Referenced in the 

State Regulations 

In response to our 2014 review 

findings, Virginia seeks to revise 

requirements related to the timing of an 

applicant’s submission to DMME of 

proof that it had published public notice 

of its exploratory permit applications, 

mining permit-related applications, and 

bond release applications referenced in 

4 VAC 25–130–772.12, 778.21, and 

800.40. In its submission, Virginia 

stated that these provisions are being 

revised to coincide with corresponding 

Federal regulations. 

Virginia proposes to revise its 

regulations by removing the timeframe 

within which a copy of the required 

newspaper announcement or proof of 

publication must be filed with DMME. 

Rather than requiring proof of 

publication within four weeks of the 

date of publication, the revised 

regulations will require the applicant to 

submit proof of publication with a 

subsequent submittal related to the 

permit application. The following 

sections related to proof of publication 

of notice for exploratory permit 

applications, mining permit-related 

applications, and bond release 

applications are affected by this change: 

1. Coal Exploration—4 VAC 25–130– 

772.12, Permit Requirements for 

Exploration Removing more than 250 

Tons of Coal or Occurring on Lands 

Designated as Unsuitable for Surface 

Coal Mining Operations: While the 

change was not specifically described in 

its submission, a comparison of its 

existing regulation to its revised 

regulation shows that Virginia seeks to 

revise subsection (c)(1) of this section to 

reflect the change noted above: 

removing the requirement that proof of 

publication be submitted within four 

weeks from the date of publication, and 

instead requiring such proof to be made 

part of a subsequent submittal related to 

the permit application prior to approval. 

OSMRE’s Finding: We have 

determined that this change does not 

render Virginia’s program less stringent 

than the section 512 of SMCRA or less 

effective than the Federal regulations at 

30 CFR 772.12. In promulgating the 

public participation process for coal 

exploration permits in § 772.12, we 

explained that exploration permits 

generally do not have as adverse an 

impact on the environment as surface 

mining, and therefore there can be more 

flexibility in the public participation 

requirements. See 48 FR 40622, 40628 

(September 8, 1983). For that reason, 

§ 772.12 provides no requirement to 

submit a copy of the newspaper 

advertisement or proof of publication to 

the regulatory authority for coal 

exploration permits. Therefore, 

Virginia’s requirement to submit proof 

of publication is more stringent than 

Federal requirements, and we approve 

the change. 

2. Surface Mining—4 VAC 25–130– 

778.21, Proof of Publication: Virginia 

seeks to revise this section to reflect the 

change noted above. As we stated in our 

2014 report, we recommended Virginia 

consider changing its regulations so that 

its use of its new electronic permitting 

process does not cause a violation of the 

program. The electronic permitting 

process altered the manner in which the 

State transmitted its comments on an 

application to the applicant and the 

manner in which the applicant could 

submit its responses to the State. 

DMME’s electronic permitting process 

requires all submissions, which include 

responses to its comments and items 

like proof of publication, to be included 

in one zip file to avoid piecemeal 

review and revision of the application. 

DMME does not accept receipt of any 

items submitted outside this format or 

individually. During our review we 

found that this process creates an 

obstacle for the permittee’s submittal of 

the proof of publication within four 

weeks after the date of last publication 

as required by Virginia’s regulations. 

This practice resulted in over half of the 

sampled applications in the review not 

meeting Virginia’s four-week timeframe. 

Virginia states it would not be feasible 

to keep the current requirement that 

proof of publication be submitted 

within four weeks after the last date of 

publication due to fact that the 

application, the contents of which must 


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be kept together in one zip file, may be 

anywhere in the electronic process. 

Therefore, the requirement of 

submitting the proof of publication in 

the next subsequent electronic 

submission after the last date of 

publication, but prior to approval, is the 

option that best accommodates 

Virginia’s electronic permitting system. 

OSMRE’s Finding: Unlike the proof of 

public notice requirements for coal 

exploration permit applications, the 

Federal regulations at 30 CFR 778.21, 

Proof of publication, require that the 

copy of the advertisement or proof of 

publication be submitted within four 

weeks after the last date of publication. 

The requirement to submit proof of 

publication was intended to aid in 

determining whether applicants 

complied with the requirement to 

publish public notice in a local 

newspaper of general circulation in the 

locality of the proposed operation and 

was initially proposed to require that 

proof of publication be submitted 

within one week after the last date of 

newspaper publication. See 43 FR 

41662, 41693 (September 18, 1978). 

Based on public comment over the 

concern that delays occur in applicants 

receiving proof of publication from 

publishers, we adopted the commenter’s 

suggestion that proof of publication be 

submitted within four weeks, accepting 

the commenter’s reasoning that four 

weeks would be a reasonable length of 

time that would not unduly delay the 

application process. See 44 FR 14902, 

15026 (March 13, 1979). 

Based on this regulatory history of 30 

CFR 778.21, we have determined that 

the change at 4 VAC 25–130–778.21 

does not render Virginia’s program less 

effective than the Federal regulations. 

Virginia’s revision only relates to the 

length of time that may elapse before 

DMME receives proof that an applicant 

has complied with its duty to publish 

public notice. The revision does not 

relieve an applicant of its duty to 

publish the notice in a timely fashion, 

nor does it affect the public’s 

opportunity to participate in the permit 

application process. Moreover, 

Virginia’s revision does not unduly 

delay the permit review process. We 

understand that electronic permitting is 

designed to improve the permitting 

process by reducing administrative 

delays that existed in the conventional 

process and making public participation 

more accessible. To the extent that these 

improvements require greater flexibility 

regarding the time in which an 

applicant can submit proof of 

publication to DMME, prior to final 

action on the application, the proposed 

revision is no less effective than the 

Federal regulations, and we approve 

this change. 

3. Bond Release: 4 VAC 25–130– 

800.40, Requirements to Release 

Performance Bonds: Virginia seeks to 

revise this section, which addresses 

public notice and proof of publication 

requirements for bond release 

applications and other documents 

required to be submitted with the bond 

release application. Virginia seeks to 

redraft paragraph (a)(2) as two 

paragraphs, numbered paragraphs (a)(2) 

and (3), and renumber existing 

paragraph (a)(3) as paragraph (a)(4). 

Existing paragraph (a)(2) includes a 

combination of notice requirements: it 

requires that proof of publication of 

public notice be submitted within 30 

days after an application for bond 

release had been filed, specifies what 

information the public notice 

advertisement must contain and how 

and where it must be published, and 

requires that the applicant must submit 

copies of letters it is required to send to 

adjacent landowners and other 

enumerated parties. The revised 

paragraph (a)(2) addresses the 

advertisement and newspaper 

circulation requirements of the bond 

release application and what the 

advertisement should include. The 

revised paragraph also requires that the 

proof of publication be made part of a 

subsequent submittal after the last date 

of publication prior to approval, rather 

than within 30 days of submission of 

the application. New paragraph (a)(3) 

contains the requirement to submit 

copies of notice letters. 

OSMRE’s Finding: For the same 

reason noted in our finding in C.3., 

above, we have determined that the 

change to the timeframe in which the 

applicant must submit proof of 

publication does not render Virginia’s 

program less effective than the Federal 

regulations at 30 CFR 800.40, and the 

changes are therefore approved. The 

remaining changes only separate and 

rearrange existing language for clarity. 

D. Editorial Changes 

Virginia also proposed certain 

editorial revisions, which include 

clarification of syntax, renumbering of 

paragraphs, and reference changes, but 

do not change the administrative 

regulations substantively. The editorial 

statutory changes are found in sections 

45.1–270.3 (clarification of syntax in 

subsection A and re-lettering of 

subsections D, E, and F) and 45.1–270.4 

(clarification of syntax in subsections B 

and C and clarification of syntax and 

renumbering of subsection E). The 

editorial regulatory changes are found at 

4 VAC 25–130–801.12 (re-lettering of 

subsections (e) and (f)) and 4 VAC 25– 

130–801.15 (clarification at subsection 

(a) and reference changes at subsections 

(b) and (d)). Because the changes in 

these sections are only editorial 

adjustments and corrections, we are 

approving them. 

IV. Summary and Disposition of 

Comments 

Public Comments 

We asked for public comments on two 

occasions. We announced receipt of the 

amendment and opportunity for public 

comment and/or hearing in the October 

22, 2015, Federal Register (80 FR 

63933) (Administrative Record No. 

2026). We reopened the public comment 

period in the February 8, 2016, Federal 

Register (81 FR 6479) (Administrative 

Record No. 2029) to afford the public 

more time to comment. The public 

comment period ended on March 9, 

2016. On March 9, 2016, we received a 

combined response from The Southern 

Appalachian Mountain Stewards 

(SAMS) and Sierra Club (SC) 

(Administrative Record No. 2030). We 

received a letter dated March 9, 2016, 

which was signed by 1,185 private 

citizens (Administrative Record No. 

2032). Identical form letters dated 

January 14, 2016, through January 19, 

2016, were received from 21 private 

citizens (Administrative Record No. 

2031). No public hearing was requested. 

A. SAMS and SC Comments: The 

following summarizes the comments 

from the SAMS and SC. 

1. Public Participation Requirements: 

The commenters support the proposal to 

revise Virginia’s public participation 

requirements to coincide with the 

Federal regulations but note that 

Virginia’s submission includes 

descriptions of the revisions that are 

unhelpful, conclusory statements that 

do not explain the events or conditions 

that prompted the revisions, and how 

the revisions resolve those concerns. 

The commenters suggest requiring 

Virginia to provide a narrative 

description of each proposed program 

change, including the expected effect 

that the proposed change would have on 

the DMME’s administration of the 

program. The commenters suggest that 

this would substantially assist members 

of the public in understanding the 

purpose and effect of the proposed 

changes. 

OSMRE’s Response: As noted in 

OSMRE’s findings under section C, 

Public Participation and Proof of 

Publication, the intent of the revisions 

was not to make Virginia’s regulations 

coincide with corresponding Federal 

regulations. Nevertheless, Virginia’s 


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revisions do not affect the public’s 

opportunity to participate and allow the 

DMME to ensure that permit applicants 

comply with the requirement to publish 

notice of applications without unduly 

delaying the permit review process. 

2. Self-Bonding: The commenters 

support the proposal to repeal and 

rescind statutory and regulatory 

provisions that authorize Virginia to 

accept self-bonds. However, the 

commenters note that Virginia is not 

compelling operators that currently use 

self-bonding to transition to 

conventional financial assurances and 

further note that eliminating selfbonding by itself does not raise the 

assets in the bond pool fund. The 

commenters urge us to require Virginia 

to transition all existing self-bonds to 

conventional bonds. Alternatively, 

commenters state that if we determine 

that Virginia may continue to maintain 

existing self-bonds, commenters oppose 

approval of the rescission of certain 

regulatory definitions and substantive 

requirements governing self-bonds, 

unless and until Virginia certifies to us 

that every previously approved selfbond has either been: (1) lawfully 

released based on an accurate 

determination that the permittee has 

satisfactorily completed all reclamation 

obligations; or (2) replaced with an 

adequate substitute bond or set of 

bonds, each of which is backed by a 

qualified surety, adequate cash deposit, 

qualified government securities, 

qualified bank instruments, or an 

adequate combination of these forms of 

financial assurance. The commenters 

reference a settlement agreement 

between Virginia and a coal company 

that did not require the coal company to 

replace its self-bond with another form 

of performance bond. 

OSMRE’s Response: We decline to 

require Virginia to transition existing 

self-bonds to conventional bonds 

because SMCRA affords the regulatory 

authority the discretion to accept 

different forms of performance bonds, 

including self-bonds, as a mechanism to 

ensure that funds will be available for 

completion of the reclamation plan if 

the work has to be performed by the 

regulatory authority in the event of a 

forfeiture. If we find, through our 

oversight activities, that a self-bonded 

permittee no longer meets Virginia’s 

program requirements, we can initiate 

appropriate action. Also, we recognize 

that eliminating self-bonding does not 

increase the assets in the bond pool 

fund. However, the elimination of future 

self-bonding decreases the potential 

liability to the Fund and is approved for 

that reason. We agree with the 

commenters’ alternative suggestion to 

maintain certain provisions governing 

existing self-bonds. Our findings are 

under section A, Performance Bonds: 

Self-Bonding. 

3. Escrow Bonding: The commenters 

also note that Virginia proposes to 

rescind the administrative regulations 

that authorize and govern escrow 

bonding at 4 VAC 25–130–800.23 but 

has not proposed to remove the 

authorization in 4 VAC 25–130–800.12 

(c), (d), and (e) of the use of escrow 

accounts as a form of performance bond. 

The commenters request that we require 

Virginia to rescind those provisions 

because with this amendment proposal, 

Virginia will no longer permit this type 

of bonding form. 

OSMRE’s Response: Virginia clarified 

that it was not the State’s intent to 

rescind the escrow bonding regulation. 

4. ABS: The commenters identified a 

number of risks associated with the 

solvency of the bond pool fund: 

inclusion of self-bonded operations, 

status of operations (e.g., the number of 

operations under temporary cessation, 

partial cessation, or ‘‘active/not 

producing’’ status), liability for sites that 

require water treatment, and decrease in 

Fund revenue because of a decline in 

coal production. The commenters 

recognize that the changes to Virginia’s 

statutes and regulations governing the 

ABS would incrementally improve the 

system, but, according to the 

commenters, the changes are not enough 

to guarantee financial soundness of its 

ABS. The commenters’ support is 

contingent on: (1) Virginia’s 

presentation to us, on or before July 1, 

2016, of a current, independent, 

professional actuarial report concerning 

the current solvency of the ABS that is 

based on complete data concerning 

current assets and liabilities of the Fund 

and a reasonable forecast of changes in 

assets and liabilities over the next five 

years; and (2) Virginia’s adoption, on or 

before the close of the 2017 session of 

the Virginia General Assembly, of 

appropriate additional statutory and 

regulatory amendments that effectively 

implement each of the 

recommendations of the May 29, 2012 

Pinnacle Report. The Pinnacle Report 

concluded that the primary risks to the 

Fund were the participation by 

companies, whether directly or through 

parent-subsidiary relationships, that 

held multiple permits that could be 

forfeited simultaneously in the event of 

default, the number of self-bonded 

permits, and that the risk of selfbonding was not reflected in the coal tax 

rate. 

The commenters also support their 

position by referencing our November 

1990 report entitled ‘‘Alternative 

Bonding Systems: An Analytical 

Approach and Identified Factors to 

Consider for Evaluating Alternative 

Bonding Systems’’ (commenters refer to 

it as the ‘‘ABS Memo’’) and a letter from 

an internationally recognized actuarial 

consultant, Tillinghast, dated November 

9, 1990 (commenters refer to it as the 

Tillinghast Letter). The commenters 

state that it is the only known criteria 

that we have endorsed related to the 

evaluation of an alternative bonding 

system. 

As the November 1990 report states, 

the analysis was conducted by an ad 

hoc committee whose purpose was to 

develop consistent considerations for 

evaluating an ABS. The report identifies 

factors which are recommended for use 

in analyzing and understanding the 

mechanisms for an ABS to operate as a 

solvent and legally sufficient system 

capable of complying with statutory and 

regulatory requirements. The 

considerations were developed through 

research and discussions with states and 

were supplemented with the advice of 

Tillinghast. 

The commenters refer to these 

guidelines as our stated criteria for 

evaluating an ABS and state that 

SMCRA requires us to evaluate each 

system on every occasion when the 

regulatory authority proposes to change 

it. Referring to those guidelines, the 

commenters had three areas of concern, 

which we will address below. 

a. Periodic Financial Soundness 

Reviews: The commenters state that 

both the Pinnacle Report and the 

OSMRE ABS Memo emphasize and/or 

recommend periodic financial 

soundness reviews. Accordingly, the 

commenters state that we should require 

an updated actuarial report on the 

solvency of the bond pool fund. The 

commenters suggest that a current 

actuarial report be required and should 

focus on, among other things, the risk 

posed by: mining permits held by 

companies currently in bankruptcy; 

mines in temporary cessation and those 

in active/non-producing status; 

Virginia’s reliance on its coal 

reclamation tax; coal production; 

Virginia’s reclamation tax rate; DMME’s 

lack of authority to impose one or more 

retroactive or special assessments in the 

future; and specific bonding 

requirements at Va. Code 45.1–270.2.D, 

45.1–270.30.D, 45.1–270.3.E, and 45.1– 

270.4.D, which limit the amount of tax 

collected from any individual operator. 

The commenters further request that the 

updated evaluation incorporate the risk 

analysis factors highlighted in the 

OSMRE ABS Memo. In particular, they 

point to the need to project the level of 

expenditures with respect to current, 


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projected, and incurred, but not 

reported liabilities and related costs. 

They contend the updated actuarial 

report must consider the forfeiture rate 

that would occur following the financial 

failure of most participating permittees 

in the ABS, including failures resulting 

in a severe economic downturn that 

could cause a failure of the industry. 

The commenters suggest that we 

should direct Virginia to consider, based 

on the results of the new actuarial 

study, eliminating the bond pool system 

entirely if financial distress in the coal 

mining industry continues. The 

commenters suggest individual surety 

bonds for the full reclamation amount 

offer the most reliable guarantee that 

funds will be available to carry out the 

reclamation required by SMCRA. 

OSMRE’s Response: OSMRE’s 

findings regarding Virginia’s ABS are 

found under Section B. Alternative 

Bonding System (ABS): Entrance Fees, 

Reclamation Taxes, and Fund Balance 

Determinations. We agree with the 

commenters that Virginia has taken 

steps to improve its ABS. We rely on 

actuarial findings and recommendations 

as well as our oversight activities to 

assist us in our determination of 

whether the ABS is capable of satisfying 

the requirements of 30 CFR 800.11(e). 

However, we are not at this time 

requiring Virginia to adopt any 

particular recommendations from the 

Pinnacle Report. We recognize that 

actuarial recommendations are based on 

past history and forecasts and do not 

necessarily reflect current economic 

conditions and financial soundness. Our 

oversight activities will continue to 

focus on the solvency of the Fund, 

including the financial status of selfbonded permittees, and will evaluate 

Virginia’s reporting on the solvency of 

the Fund accordingly. 

b. Authority to Adjust Fees and Taxes: 

The commenters state that they oppose, 

as a matter of administrative principle, 

the aspects of the proposed amendment 

to the ABS that commenters believe 

effectively rescind the authority of the 

DMME Director to promulgate 

regulations (effective only on our 

approval pursuant to 30 CFR 732.17(g)) 

that set, from time to time, specific 

entrance fees, renewal fees, reclamation 

tax rates, and special assessments in 

amounts that reasonably can assure the 

solvency of the ABS. Instead, the 

commenters state that we should require 

Virginia to expressly authorize the 

Director to promulgate regulations 

setting the amount or rate of such 

specific fees, above a set floor, so as to 

enable the Director to make timely 

adjustments that are or may become 

necessary to achieve or maintain 

solvency of the ABS. The commenters, 

citing the OSMRE ABS Memo, state that 

we have a duty to assure, as part of the 

consideration for approving an ABS, 

that any such system include 

‘‘legislative authority that allows the 

[regulatory authority] to adjust rates as 

needed to cover accountable liabilities.’’ 

OSMRE’s Response: We have 

determined that Virginia’s proposed 

changes do not rescind any authority 

from DMME to set fees. The authority 

provisions to which the commenters 

refer, principally 4 VAC 25–130–801.12 

and 801.14, merely duplicate the 

statutory fee requirements and do not 

grant DMME the independent authority 

to deviate from the fees set by the 

statute. Therefore, their rescission does 

not remove authority from DMME. The 

commenters’ assertion that the OSMRE 

ABS Memo requires us to ensure that 

DMME, rather than the Virginia General 

Assembly, has the statutory authority to 

adjust fees is incorrect. The 

recommendation the commenters 

reference relates to elements that states 

should include in the narrative 

description of their ABS program only 

if their ABS program includes those 

elements, subject to legal restrictions 

that include those in the state 

constitution. Moreover, neither section 

509(a) of SMCRA, nor the Federal 

regulations at 30 CFR 800.11(e), dictate 

how ABS systems must be funded. 

Therefore, we do not require state 

legislatures to grant regulatory agencies 

the authority to adjust fees and taxes 

because the states may choose to meet 

the requirements of SMCRA and its 

implementing regulations through other 

means. See, e.g., 66 FR 67446 (December 

28, 2001) (approving the creation of a 

Special Reclamation Fund Advisory 

Council that reports to the West Virginia 

Legislature and the Governor on the 

adequacy of the special reclamation tax 

set by statute). The recommendations in 

the OSMRE ABS Memo only suggest 

that if an ABS is funded a certain way, 

those elements should be included in 

the narrative submission. 

c. Fund Cap: The commenters support 

eliminating the $2 million Fund cap and 

increasing the Fund cap to $20 million 

because this change would allow 

additional money to accumulate to 

cover the potential liabilities of the 

Fund. However, the commenters note 

that Virginia has not demonstrated that 

$20 million would be sufficient to cover 

all of the potential liabilities to the 

Fund, especially in light of declining 

coal production and industry finances. 

The commenters suggest that Virginia 

follow the recommendation of the 

Pinnacle Report to repeal the Fund cap 

altogether, thereby allowing the Fund to 

continue growing. 

OSMRE’s Response: We agree with 

the commenters that the $2 million 

Fund cap should be removed. We also 

agree with the commenters that Virginia 

has not demonstrated that $20 million 

would be sufficient to make Virginia’s 

ABS solvent. Our findings regarding 

Virginia’s ABS are found under section 

B, Alternative Bonding System (ABS): 

Entrance Fees, Reclamation Taxes, and 

Fund Balance Determinations. 

B. Private Citizen Comments: The 

following summarizes the comments 

that were received from private citizens. 

The commenters state that, in 

approving Virginia’s regulations, we 

should consider the comments 

submitted by the SAMS and SC. They 

opine that although eliminating selfbonding is a good start, Virginia needs 

to do more to prevent the citizens from 

bearing the costs of mine clean up. They 

request that we advise Virginia that it 

needs to do more and undertake a new 

study that actually accounts for the 

effects of decreased coal production and 

mine operator insolvency and eliminate 

caps on its pooled reclamation fund. 

OSMRE’s Response: We have 

considered the SAMS and SC’s 

comments during the review process 

and have addressed future actuarial 

studies and the Fund caps. Our findings 

are located under section B, Alternative 

Bonding System (ABS): Entrance Fees, 

Reclamation Taxes, and Fund Balance 

Determinations. Virginia is aware of its 

responsibility to continually assess the 

status of its bonding program, 

specifically the solvency of the bond 

pool. We believe that, in managing the 

bond pool, Virginia will conduct a 

financial analysis of the bond pool using 

third-party actuarial studies as it deems 

necessary. In our oversight of the 

Virginia bonding program, particularly 

of the bond pool and its solvency, we 

will be reviewing how Virginia assesses 

and manages the bond pool. If in the 

future we determine that Virginia is not 

managing the bond pool program 

effectively, we will notify the State of 

our findings through the 732 processes 

for Virginia to undertake any corrective 

actions required. 

Federal Agency Comments 

On June 23, 2015, under 30 CFR 

732.17(h)(11)(i) and section 503(b) of 

SMCRA, we requested comments on the 

amendments from various Federal 

agencies with an actual or potential 

interest in the Virginia program 

(Administrative Record No. 2025). No 

Federal agency comments were 

received. 


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Environmental Protection Agency (EPA) 

Concurrence and Comments 

Under 30 CFR 732.17(h)(11)(ii), we 

are required to get a 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.). None of the 

revisions that Virginia proposed to make 

in this amendment pertain to air or 

water quality standards. Therefore, we 

did not ask EPA to concur on the 

amendment. However, on June 23, 2015, 

under 30 CFR 732.17(h)(11)(i), we 

requested comments from the EPA 

(Administrative Record No. 2025). The 

EPA did not provide any comments. 

State Historical Preservation Officer 

(SHPO) and the Advisory Council on 

Historic Preservation (ACHP) 

Under 30 CFR 732.17(h)(4), we are 

required to request comments from the 

SHPO and ACHP on amendments that 

may have an effect on historic 

properties. On June 23, 2015, we 

requested comments from the Virginia 

Department of Historic Resources on 

Virginia’s amendment (Administrative 

Record No. VA 2025). We did not 

receive any comments. 

V. OSMRE’s Decision 

Based on the above findings, we are 

approving Virginia’s amendment that 

was submitted to us on June 12, 2015 

(Administrative Record No. 2024), with 

the following two deferrals: 

1. We are deferring our decision on 

the removal of 4 VAC 25–130–801.13(d) 

of the self-bonding regulations until all 

previously approved self-bonds have 

either (1) been lawfully released based 

on an accurate determination that the 

permittee has satisfactorily completed 

all reclamation obligations, or (2) been 

replaced with an adequate substitute 

bond or set of bonds, each of which is 

backed by a qualified surety, adequate 

cash deposit, qualified government 

securities, qualified bank instruments, 

or an adequate combination of these 

forms of financial assurance. 

2. We are deferring our decision on 

the provisions of 45.1–270.4.B and C of 

the Virginia Code to the extent that they 

impose a cap of $20 million. We are 

approving the continuing collection of 

the tax beyond $2 million but deferring 

our decision on the cessation of the tax 

collection when the Fund reaches $20 

million until such time as Virginia 

either takes legislative action to remove 

the cap from this statute or 

demonstrates that $20 million is a 

sufficient amount of money to complete 

the reclamation, including water 

treatment, on any area covered by the 

Fund. Our deferral has the effect of 

removing the cap upon the amount of 

money that can be in the Fund at any 

given time and will remain in effect 

until Virginia makes that demonstration. 

To implement this decision, we are 

amending the Federal regulations at 30 

CFR part 946 that codify decisions 

concerning the Virginia program. In 

accordance with the Administrative 

Procedure Act, this rule will take effect 

30 days after the date of publication. 

VI. Statutory and Executive Order 

Reviews 

Executive Order 12630—Governmental 

Actions and Interference With 

Constitutionality Protected Property 

Rights 

This rule would not effect a taking of 

private property or otherwise have 

taking implications that would result in 

public property being taken for 

government use without just 

compensation under the law. Therefore, 

a takings implication assessment is not 

required. This determination is based on 

an analysis of the corresponding Federal 

regulations. 

Executive Order 12866—Regulatory 

Planning and Review, 13563— 

Improving Regulation and Regulatory 

Review, and 14094—Modernizing 

Regulatory Review 

Executive Order 12866, as amended 

by Executive Order 14094, provides that 

the Office of Information and Regulatory 

Affairs in the Office of Management and 

Budget (OMB) will review all significant 

rules. Pursuant to OMB guidance, dated 

October 12, 1993, the approval of State 

program is exempted from OMB review 

under Executive Order 12866, as 

amended by Executive Order 14094. 

Executive Order 13563, which reaffirms 

and supplements Executive Order 

12866, retains this exemption. 

Executive Order 12988—Civil Justice 

Reform 

The Department of the Interior has 

reviewed this rule as required by section 

3 of Executive Order 12988. The 

Department determined that this 

Federal Register document meets the 

criteria of section 3 of Executive Order 

12988, which is intended to ensure that 

the agency review its legislation and 

proposed regulations to eliminate 

drafting errors and ambiguity; that the 

agency write its legislation and 

regulations to minimize litigation; and 

that the agency’s legislation and 

regulations provide a clear legal 

standard for affected conduct rather 

than a general standard, and promote 

simplification and burden reduction. 

Because section 3 focuses on the quality 

of Federal legislation and regulations, 

the Department limited its review under 

this Executive order to the quality of 

this Federal Register document and to 

changes to the Federal regulations. The 

review under this Executive order did 

not extend to the language of the State 

regulatory program amendment that 

Virginia drafted. 

Executive Order 13132—Federalism 

This rule has potential federalism 

implications as defined under section 

1(a) of Executive Order 13132. 

Executive Order 13132 directs agencies 

to ‘‘grant the States the maximum 

administrative discretion possible’’ with 

respect to Federal statutes and 

regulations administered by the States. 

Virginia, through its approved 

regulatory program, implements and 

administers SMCRA and its 

implementing regulations at the State 

level. This rule approves an amendment 

to the Virginia program submitted and 

drafted by the State, and thus is 

consistent with the direction to provide 

maximum administrative discretion to 

States. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

The Department of the Interior strives 

to strengthen its government-togovernment relationship with Tribes 

through a commitment to consultation 

with Tribes and recognition of their 

right to self-governance and Tribal 

sovereignty. We have evaluated this rule 

under the Department’s consultation 

policy and under the criteria in 

Executive Order 13175 and have 

determined that it has no substantial 

direct effects on the distribution of 

power and responsibilities between the 

Federal Government and Tribes. The 

basis for this determination is that our 

decision on the Virginia program does 

not include Indian lands, as defined by 

SMCRA, or regulation of activities on 

Indian lands. Indian lands are regulated 

independently under the applicable, 

approved Federal program. The 

Department’s consultation policy also 

acknowledges that our rules may have 

Tribal implications where the State 

proposing the amendment encompasses 

ancestral lands in areas with mineable 

coal. We are currently working to 

identify and engage appropriate Tribal 

stakeholders to devise a constructive 

approach for consulting on these 

amendments. 


lotter on DSK11XQN23PROD with RULES1
85850 Federal Register / Vol. 88, No. 236 / Monday, December 11, 2023 / Rules and Regulations 

Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Executive Order 13211 requires 

agencies to prepare a Statement of 

Energy Effects for a rulemaking 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 

significant energy action under the 

definition in Executive Order 13211, a 

Statement of Energy Effects is not 

required. 

Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This rule is not subject to Executive 

Order 13045 because this is not an 

economically significant regulatory 

action as defined by Executive Order 

12866; and this action does not address 

environmental health or safety risks 

disproportionately affecting children. 

National Environmental Policy Act 

Consistent with sections 501(a) and 

702(d) of SMCRA (30 U.S.C. 1251(a) and 

1292(d), respectively) and the U.S. 

Department of the Interior Departmental 

Manual, part 516, section 13.5(A), State 

program amendments are not major 

Federal actions within the meaning of 

section 102(2)(C) of the National 

Environmental Policy Act (42 U.S.C. 

4332(2)(C). 

National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act (NTTAA) (15 U.S.C. 3701 et seq.) 

directs OSMRE to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical (OMB Circular A– 

119 at p. 14). This action is not subject 

to the requirements of section 12(d) of 

the NTTAA because application of those 

requirements would be inconsistent 

with SMCRA. 

Paperwork Reduction Act 

This rule does not include requests 

and requirements of an individual, 

partnership, or corporation to obtain 

information and report it to a Federal 

agency. As this rule does not contain 

information collection requirements, a 

submission to the Office of Management 

and Budget under the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.) 

is not required. 

Regulatory Flexibility Act 

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 

the Federal regulations that set 

minimum performance standards for 

alternative bonding systems 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 related 

Federal regulations. 

Congressional Review 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 on an analysis of 

the corresponding Federal regulations, 

which were determined not to 

constitute a major rule. 

Unfunded Mandates Reform Act 

This rule does not impose an 

unfunded mandate on State, local, or 

Tribal governments or the private sector 

of more than $100 million per year. The 

rule does not have a significant or 

unique effect on State, local, or Tribal 

governments or the private sector. This 

determination is based on an analysis of 

the Federal regulations that set 

minimum performance standards for 

alternative bonding systems, which 

were determined not to impose an 

unfunded mandate. Therefore, a 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1531 et seq.) is not 

required. 

List of Subjects in 30 CFR Part 946 

Intergovernmental relations, Surface 

mining, Underground mining. 

Thomas D. Shope, 

Regional Director, North AtlanticAppalachian Region. 

For the reasons set out in the 

preamble, 30 CFR part 946 is amended 

as follows: 

PART 946—VIRGINIA 

■ 1. The authority citation for part 946 

continues to read as follows: 

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

■ 2. Amend § 946.12 by adding 

paragraph (d) to read as follows: 

§ 946.12 State program provisions and 

amendments not approved. 

* * * * * 

(d) We are not approving the 

following portions of provisions of the 

proposed program amendment that 

Virginia submitted on June 12, 2015: 

(1) We are deferring our decision on 

the removal of 4 VAC 25–130–801.13(d) 

of the self-bonding regulations until all 

previously approved self-bonds have 

either been lawfully released based on 

an accurate determination that the 

permittee has satisfactorily completed 

all reclamation obligations or replaced 

with an adequate substitute financial 

assurance under the approved Virginia 

regulatory program. 

(2) We are deferring our decision on 

the provisions of 45.1–270.4.B and C of 

the Virginia Code that address 

reclamation tax revenue to the extent 

that they impose a cap of $20 million. 

We are approving the continuing 

collection of the tax beyond $2 million 

but deferring our decision on the 

cessation of the tax collection when the 

Fund reaches $20 million until such 

time as Virginia either takes legislative 

action to remove the cap from this 

statute or demonstrates that $20 million 

is a sufficient amount of money to 

complete the reclamation, including 

water treatment, on any site covered by 

the Fund. 

■ 3. Amend § 946.15 in the table by 

adding the entry ‘‘June 12, 2015’’ in 

chronological order by ‘‘Date of Final 

Publication’’ to read as follows: 

§ 946.15 Approval of Virginia regulatory 

program amendments. 

* * * * * 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 88, No. 236 / Monday, December 11, 2023 / Rules and Regulations 85851 

Original amendment 

submission date 

Date of final 

publication Citation/description 

*******

June 12, 2015 ................ December 11, 2023 ....... 45.1–241.C (Performance Bonds), 45.1–270.3 (Initial Payments into Fund; Renewal Payments; Bonds); and 45.1–270.4 (Assessment of Reclamation Tax Revenue for Fund) 

(partial). 

4 VAC 25–130–700.5 (Definitions) ‘‘indemnity agreement’’ and ‘‘self-bond’’ (deleted); 

772.12 (Permit Requirements for Exploration Removing more than 250 Tons of Coal or 

Occurring on Lands Designated as Unsuitable for Surface Coal Mining Operations); 

778.21 (Proof of Publication); 800.12(f) (Form of the Performance Bond); 800.40© and 

(d) (Requirements to Release Performance Bonds); 801.11 (Participation in the Pool 

Bond Fund) (deleted); 801.12 (Entrance Fee and Bond); 801.13 (Self-bonding) (deleted); 801.14 (Reclamation Tax) (deleted); 801.15 (Collection of the Reclamation Tax 

and Penalties for Non-Payment); 801.16 (Reinstatement to the Pool Bond Fund) (deleted). 

[FR Doc. 2023–27105 Filed 12–8–23; 8:45 am] 

BILLING CODE 4310–05–P 

POSTAL SERVICE 

39 CFR Part 233 

Inspection Service Authority; 

Technical Correction 

AGENCY: Postal ServiceTM. 

ACTION: Final rule. 

SUMMARY: The U.S. Postal ServiceTM is 

amending its regulations governing mail 

covers so that they are consistent with 

current mail classification terminology. 

DATES: This rule is effective December 

11, 2023. 

ADDRESSES: Questions on this action are 

welcome. Mail or deliver written 

comments to Postal Inspector in Charge, 

Office of Counsel, U.S. Postal Inspection 

Service, 475 L’Enfant Plaza SW, Room 

3114, Washington, DC 20260–3100. 

FOR FURTHER INFORMATION CONTACT: 

Louis DiRienzo, Postal Inspector in 

Charge, Office of Independent Counsel, 

U.S. Postal Inspection Service, 202– 

268–2705. 

SUPPLEMENTARY INFORMATION: On May 

22, 2023, the Postal ServiceTM published 

a final rule announcing changes to 

domestic competitive products. 88 FR 

32824. Among the changes in that final 

rule are provisions expanding FirstClass Package Service to subsume USPS 

Retail Ground and Parcel Select Ground, 

eliminating USPS Retail Ground and 

Parcel Select Ground as standalone 

products, renaming the expanded FirstClass Package Service USPS Ground 

AdvantageTM, and further segregating 

the USPS Ground Advantage product 

into retail and commercial price 

categories. The Postal Service is 

accordingly updating its regulations to 

adjust the definitions of sealed and 

unsealed mail to incorporate these 

changes. 

List of Subjects in 39 CFR Part 233 

Administrative practice and 

procedure, Crime, Law enforcement, 

Penalties, Privacy. 

For the reasons stated in the 

preamble, the Postal Service amends 39 

CFR part 233 as follows: 

PART 233—INSPECTION SERVICE 

AUTHORITY 

■ 1. The authority citation for 39 CFR 

part 233 continues to read as follows: 

Authority: 39 U.S.C. 101, 102, 202, 204, 

401, 402, 403, 404, 406, 410, 411, 1003, 

3005(e)(1), 3012, 3017, 3018; 12 U.S.C. 3401– 

3422; 18 U.S.C. 981, 983, 1956, 1957, 2254, 

3061; 21 U.S.C. 881; Pub. L. 101–410, 104 

Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104– 

208, 110 Stat. 3009; Secs. 106 and 108, Pub. 

L. 106–168, 113 Stat. 1806 (39 U.S.C. 3012, 

3017); Pub. L. 114–74, 129 Stat. 584. 

§ 233.3 [Amended] 

■ 2. In § 233.3(c)(3), add the words 

‘‘USPS Ground AdvantageTM—Retail’’ 

immediately following ‘‘Priority Mail 

Express;’’ and immediately prior to 

‘‘Outbound International Expedited 

Services (Priority Mail Express 

International; as well as Global Express 

Guaranteed items containing only 

documents);’’ 

■ 3. In § 233.3(c)(4), remove the words 

‘‘First Class Package Service; USPS 

Retail Ground,’’ and add in their place 

the words ‘‘USPS Ground 

AdvantageTM—Commercial;’’. 

Sarah Sullivan, 

Attorney, Ethics & Legal Compliance. 

[FR Doc. 2023–26787 Filed 12–8–23; 8:45 am] 

BILLING CODE 7710–12–P 


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