37774 Federal Register / Vol. 63, No. 134 /Tuesday, July 14, 1998 /Rules and Regulations

Control(s) Country chart

AT applies to entire

entry.

AT Column 1.

UN applies to

9A991.a.

Rwanda; Federal Republic of Yugoslavia (Serbia and

Montenegro).

* * * * *

9D018 ‘‘Software’’ for the ‘‘use’’ of

equipment controlled by 9A018.

License Requirements

Reason for Control: NS, RS, AT, UN

Control(s) Country chart

NS applies to entire

entry.

NS Column 1.

RS applies to

9A018.a and .b.

RS Column 2.

AT applies to entire

entry.

AT Column 1.

UN applies to entire

entry.

Rwanda; Federal Republic of Yugoslavia (Serbia and

Montenegro).

* * * * *

9E018 ‘‘Technology’’ for the

‘‘development’’, ‘‘production’’, or ‘‘use’’

of equipment controlled by 9A018.

License Requirements

Reason for Control: NS, RS, AT, UN

Control(s) Country chart

NS applies to entire

entry.

NS Column 1.

RS applies to

9A018.a and .b.

RS Column 2.

AT applies to entire

entry.

AT Column 1.

UN applies to entire

entry

Rwanda; Federal Republic of Yugoslavia (Serbia and

Montenegro).

* * * * *

Dated: July 2, 1998.

Iain S. Baird,

Acting Assistant Secretary for Export

Administration.

[FR Doc. 98–18417 Filed 7–13–98; 8:45 am]

BILLING CODE 3510–DT–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 948

[WV–078–FOR]

West Virginia Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule.

SUMMARY: OSM is approving the

clarification of three final rule

decisions, the removal of a required

amendment, and the vacating of its

retroactive approval of amendments to

the West Virginia permanent regulatory

program (hereinafter referred to as the

West Virginia program) under the

Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The

clarifications concern West Virginia

statutes pertaining to administrative

appeals and the State Environmental

Quality Board, and the required

amendment pertains to termination of

jurisdiction. These actions are intended

to comply with a settlement agreement

reached in West Virginia Mining and

Reclamation Association (WVMRA) v.

Babbitt, No. 2: 96–0371 (S.D. W.Va.).

EFFECTIVE DATE: July 14, 1998.

FOR FURTHER INFORMATION CONTACT:

Mr. Roger W. Calhoun, Director,

Charleston Field Office, Telephone:

(304) 347–7158.

SUPPLEMENTARY INFORMATION:

I. Background on the Virginia Program

II. Submission of the Amendment

III. Director’s Findings

IV. Summary and Disposition of Comments

V. Director’s Decision

VI. Procedural Determinations

I. Background on the West Virginia

Program

On January 21, 1981, the Secretary of

the Interior conditionally approved the

West Virginia program. Background

information on the West Virginia

program, including the Secretary’s

findings, the disposition of comments,

and the conditions of the approval can

be found in the January 21, 1981,

Federal Register (46 FR 5915–5956).

Subsequent actions concerning the West

Virginia program and previous

amendments are codified at 30 CFR

948.10, 948.12, 948.13, 948.15, and

948.16.

II. Submission of the Amendment

In a series of three letters dated June

28, 1993, and July 30, 1993

(Administrative Record Nos. WV–888,

WV–889 and WV–893), the West

Virginia Division of Environmental

Protection (WVDEP) submitted an

amendment to its approved permanent

regulatory program that included

numerous revisions to the West Virginia

Surface Coal Mining and Reclamation

Act (referred to herein as ‘‘the Act’’,

WVSCMRA § 22A–3–1 et seq.) and the

West Virginia Surface Mining

Reclamation Regulations (CSR § 38–2–1

et seq.). OSM approved the proposed

revisions on durable rock fills on

August 16, 1995, (60 FR 42437–42443)

and approved, with exceptions, the

proposed revisions on bonding on

October 4, 1995, (60 FR 51900–51918).

OSM approved, with exceptions, the

remaining amendments on February 21,

1996, (61 FR 6511–6537). See 30 CFR

948.15 for the provisions that were

partially approved by OSM. See 30 CFR

948.16 for required amendments.

On April 18, 1996, the WVMRA, the

West Virginia Coal Association, and the

Tri-State Coal Operators Association,

Inc. filed an appeal, pursuant to section

526(a)(1) of SMCRA, 30 U.S.C.

1276(a)(1), challenging certain OSM

decisions contained in the February 21,

1996, Federal Register Notice, including

the decision to make approval of the

amendment retroactive. (Administrative

Record Number WV–1027). On October

29, 1997, the parties reached a

settlement agreement with respect to six

of the seven counts contained in the

above referenced case. (Administrative

Record Number WV–1077). The other

count, pertaining to the use of passive

treatment systems after final bond

release, was decided by the United

States District Court for the Southern

District of West Virginia in OSM’s favor.

See WVMRA v. Babbitt, No. 2: 96–0371

(S.D. W.Va. July 11, 1997)

(Administrative Record Number WV–

1072). OSM proposed this rulemaking

in order that it may fulfill its obligations

with respect to five of the six counts of

the appeal which are addressed by

settlement agreement. The remaining

count addressed in the settlement

agreement, pertaining to the

windrowing of materials on the

downslope in steep slope areas, is the

subject of another proposed rulemaking,

announced in the June 10, 1997, Federal

Register. See 62 FR 31543, 31545.

The proposed rulemaking was

published in the February 23, 1998,

Federal Register (63 FR 8891). No one

requested an opportunity to speak at a

public hearing, so none was held.

III. Director’s Findings

Set forth below, pursuant to SMCRA

and the Federal regulations at 30 CFR

732.15 and 732.17, are the Director’s
Federal Register / Vol. 63, No. 134 /Tuesday, July 14, 1998 /Rules and Regulations 37775

findings concerning the clarification of

three final rule decisions, the removal of

a required amendment, and the vacating

of its retroactive approval of

amendments to the West Virginia

permanent regulatory program.

1. The Clarifications

§ 22B–1–7(d) Administrative Appeals

As announced in the Federal Register

on February 21, 1996 (61 FR at 6516,

6536), OSM did not approve a language

at § 22B–1–7(d) concerning allowing

temporary relief where the appellant

demonstrates that the executed decision

appealed from will result in the

appellant suffering an ‘‘unjust

hardship.’’ OSM stated that the

provision was disapproved because the

exception is inconsistent with SMCRA

section 514(d) and 525(c). Further, OSM

required, at 30 CFR 948.16(nnn), that

§ 22B–1–7(d) be amended to be

consistent with SMCRA sections 514(d)

and 525(c). In accordance with the

settlement agreement in WVMRA v.

Babbitt, supra, OSM proposed to clarify

its February 21, 1996, decision by

stating that § 22B–1–7(d) is not

approved only to the extent that it

includes unjust hardship as a criterion

to support the granting of temporary

relief from an order or other decision

issued under Chapter 22, Article 3 of the

West Virginia Code, which is the West

Virginia counterpart to SMCRA. OSM

also proposed to revise the required

amendment at 30 CFR 948.16(nnn) to

require West Virginia to amend its

program to remove unjust hardship as a

criterion to support the granting of

temporary relief from an order or other

decision issued under Chapter 22,

Article 3 of the West Virginia Code. The

Director now adopts this proposal, and

is, therefore, not approving § 22B–1–

7(d) only to the extent that it includes

unjust hardship as a criterion to support

the granting of temporary relief from an

order or other decision issued under

Chapter 22, Article 3 of the West

Virginia Code, which is the West

Virginia counterpart to SMCRA. The

Director is also revising the required

amendment at 30 CFR 948.16(nnn) to

require West Virginia to amend its

program to remove unjust hardship as a

criterion to support the granting of

temporary relief from an order or other

decision issued under Chapter 22,

Article 3 of the West Virginia Code.

§ 22B–1–7(h) Administrative Appeals

As announced in the Federal Register

on February 21, 1996 (61 FR at 6516,

6536), OSM did not approve language at

§ 22B–1–7(h) to the extent that the

provisions would allow the West

Virginia Surface Mining Board to

decline to order an operator to treat or

control discharges due to economic

considerations. In addition, OSM

required, at 30 CFR 948.16(ooo), that the

State further amend § 22B–1–7(h) to be

no less stringent than SMCRA section

515(b)(10) and no less effective than the

Federal regulations at 30 CFR 816.42 by

requiring that discharges be controlled

or treated without regard to economic

feasibility. In accordance with the

settlement agreement in WVMR v.

Babbitt, supra. OSM proposed to clarify

that § 22B–1–7(h) is not approved only

to the extent that it references Article 3,

Chapter 22 of the West Virginia Code.

OSM also proposed to revise the

required amendment at 30 CFR

948.16(ooo) to require West Virginia to

mend its program by removing the

reference, in § 22B–1–7(h), to Article 3,

Chapter 22. The Director is now

adopting this proposal and is, therefore,

not approving § 22B–1–7(h) only to the

extent that it references Article 3,

Chapter 22 of the West Virginia Code.

The Director is also revising the

required amendment at 30 CFR

948.16(ooo)—to require West Virginia to

amend its program by removing the

reference, in § 22B–1–7(h), to Article 3,

Chapter 22.

§ 22B–3–4 Environmental Quality Board

As announced in the Federal Register

on February 21, 1996 (61 FR at 6517),

OSM approved the provisions at § 22B–

3–4 concerning the Environmental

Quality Board’s rulemaking authority.

Under the State’s S.B. 287, the Board is

authorized, with certain restrictions, to

promulgate procedural rules granting

site-specific variances for water quality

standards for coal remining operations.

In approving the provision, OSM also

stated that any such procedural rules

that grant variances must be submitted

to OMS for approval prior to their

implementation.

In accordance with the settlement

agreement in WVMRA v. Babbitt, supra,

OSM proposed to clarify that it does not

have approval authority over rules

developed by the Environmental

Quality Board under the authority of the

Clean Water Act. The Director is now

adopting this proposal and finds,

therefore, that the Environmental

Quality Board is not required to submit

to OSM for approval procedural rules

for the implementation of site specific

variances for water quality standards for

remining operations.

2. Amendment Findings Revisions

CSR 38–2–1.2(c)(1) Termination of

Jurisdiction

As announced in the Federal Register

on February 21, 1996 (61 FR at 6517,

6536), OSM found § 38–2–1.2(c)(1) to be

less effective than the Federal

regulations at 30 CFR 700.11(d)(1)(i) to

the extent that subsection (c)(1) does not

require compliance with the Federal

initial program regulations at

Subchapter B or the West Virginia

permanent regulatory program as a

prerequisite to the termination of

jurisdiction over an initial program site.

In addition, OSM required, at 30 CFR

948.16(ppp), that the State further

amend subsection (c)(1) to require

compliance with the Federal initial

program regulations at Subchapter B or

the West Virginia permanent regulatory

program regulations as a prerequisite to

the termination of jurisdiction over an

initial program site.

By letter dated December 12, 1996

(Administrative Record Number WV–

1052), the West Virginia Division of

Environmental Protection (WVDEP)

stated its commitment to require that

initial program sites in West Virginia

meet the West Virginia program’s

permanent program requirements as a

precondition of the termination of

regulatory jurisdiction over such sites.

In recognition of the acknowledgment

contained in the December 12, 1996,

WVDEP letter, and in accordance with

the settlement agreement in WVMRA v.

Babbitt, supra, OSM proposed to accept

the WVDEP’s December 12, 1996 letter

as satisfying the requirements of 30 CFR

700.11(d)(1)(i), and proposed to delete

the required amendment codified at 30

CFR 948.16(ppp). The Director is now

adopting this proposal and, therefore, is

accepting the WVDEP’s December 12,

1996 letter as satisfying the

requirements of 30 CFR 700.11(d)(1)(i).

The Director is also removing the

required amendment at 30 CFR

948.16(ppp).

3. Vacating Retroactive Approval of

Amendments

In the February 21, 1996, Federal

Register (61 FR 6533), OSM stated that

with respect to laws and regulations

being approved in the notice, the OSM

was making the effective date of the

approval retroactive to the date upon

which each provision took effect in

West Virginia for purposes of State law.

However, as stated in the settlement

agreement in WVMRA v. Babbitt, supra,

OSM has agreed to vacate the retroactive

effect of its approval of the program

amendment which was the subject of

the February 21, 1996, Federal Register
37776 Federal Register / Vol. 63, No. 134 /Tuesday, July 14, 1998 /Rules and Regulations

notice. Therefore, OSM announced its

intention to vacate the retroactive

approval of the amendments discussed

and approved in the February 21, 1996,

Federal Register notice, 61 FR 6511,

6535. In addition, OSM proposed to

change the effective dates of all the

amendments approved in the February

21, 1996 notice to February 21, 1996.

Accordingly, the Director is hereby

vacating the retroactive approval of the

amendments discussed and approved in

the February 21, 1996, Federal Register

notice 61 FR 6511, 6535. Furthermore,

the Director is changing the effective

dates of all the amendments approved

in the February 21, 1996 notice to

February 21, 1996.

The Director finds that the

clarifications, amendment findings

revisions, and vacation of the retroactive

approval of the previously approved

amendments do not render the West

Virginia program less effective, and are

hereby approved.

IV. Summary and Disposition of

Comments

Federal Agency Comments

Pursuant to section 503(b) of SMCRA

and 30 CFR 732.17(h)(11)(i), comments

were solicited from various interested

Federal agencies. The Department of the

Army, U.S. Army Corps of Engineers

responded and stated that the proposed

dispositions are satisfactory to the

agency. The U.S. Department of Labor,

Mine Safety and Health Administration

(MSHA) responded and stated that the

agency did not find any statements that

would conflict with MSHA’s regulations

or policies.

Public Comments

The following comments were

received in response to the request for

public comments. The West Virginia

Coal Association (WVCA) stated that

events have occurred since OSM’s

approval of the West Virginia Code at

§ 22–3–8(6)(B) concerning compliance

with the State’s workers’ compensation

provisions at § 23–2–5. § 22–3–8(6)(B)

states that ‘‘[i]t is a requirement of this

article [article 3, chapter 22, which is

the West Virginia counterpart to

SMCRA] that each operator maintain

continued compliance with the

provisions of section five, article two,

chapter twenty-three of this code [the

requirement to pay workers’

compensation premiums] and provide

proof of compliance to the director on

an annual basis.’’ Specifically, the

commenter stated that interpretations of

§ 22–3–8(6)(B) may improperly (1)

create bond forfeitures that cannot be

reclaimed by the State’s special

reclamation fund; (2) allow reclamation

bonds to be used for purposes other

than reclamation of mining sites; and (3)

allows citizens’ suits that would affect

limits imposed under the State’s

workers’ compensation laws.

Accordingly, the WVCA demanded that

OSM either disapprove § 22–3–8(6)(B)

or approve it expressly subject to the

interpretation given to the provision by

the WVDEP. That interpretation is

discussed below.

The WVDEP stated that its primary

concern is that implementation of § 22–

3–8(6)(B) not put any additional

pressure on the bonding funds available

to WVDEP for completing reclamation.

WVDEP stated that, while it is more

than willing to screen applicants for

compliance with the workers’

compensation laws and thereafter take

reasonable action to ensure that they

subsequently maintain compliance, the

WVDEP cannot in doing so jeopardize

its primary purposes to ensure that the

environment is protected and

reclamation is accomplished.

The WVDEP further stated that to

ensure that § 22–3–8(6)(B) is not

interpreted or applied in such a fashion

as to jeopardize environmental

protection and the reclamation bonding

program, WVDEP issued a policy on

June 7, 1995, concerning enforcement

procedures for companies in default

with workers’ compensation. By that

policy, WVDEP interprets § 22–3–

8(6)(B) to allow permittees to abate

violations issued for the workers’

compensation defaults of their

contractors either by demonstrating that

the contractor has returned to good

standing or by taking action to terminate

the operator approval. WVDEP stated

that it recognizes that any

interpretations of § 22–3–8(6)(B) which

would impose obligations on permittees

or operators for workers’ compensation

obligations incurred prior to the

effective date of the statute could

compromise the Special Reclamation

Fund, which is used to reclaim

minesites for which the proceeds for

forfeited performance bonds are

inadequate to achieve full reclamation.

To ensure an appropriate application

of § 22–3–8(6)(B) while maintaining the

consistency of the State surface mining

program with SMCRA, and in

accordance with its June 7, 1995, policy,

the WVDEP interprets § 22–3–8(6)(B) as:

(1) Prohibiting the issuance of both

new permits and operator approvals

(known as operator reassignments in

West Virginia) to those applicants for

which the Workers’ Compensation

Division advises have not complied

with § 23–2–5;

(2) In cases involving permittees that

utilize contractors, enabling DEP to

issue a notice of violation to a permittee

for its contractors’ failure to comply

with the workers’ compensation

provisions of W. Va. Code § 23–2–5, and

allowing the permittee to abate the

violation either by demonstrating that

the contractor has returned a status of

good standing with the Workers’

Compensation Division or by submitting

the paperwork necessary to allow DEP

to rescind or terminate the operator

approval (operator reassignment); and

(3) To the extent it imposes

obligations on permittees and operators

to maintain compliance with W. Va.

Code § 23–2–5, it does so only to the

extent that the obligation to pay

premiums, submit reports, etc. first

arose after the effective date of W. Va.

Code § 22–3–8(6)(B).

The Director does not believe that the

WVCA’s comments are germane to this

rulemaking, since approval of § 22–3–

8(6)(A) and (B) was previously

announced in the February 21, 1996,

Federal Register. 61 FR 6511. In his

approval, the Director noted that ‘‘as

provided in paragraph (h) [§ 22–3–8(6)],

the State proposes to make compliance

with the Workers’ Compensation

Program a requirement of permit

approval.’’ 61 FR at 6514. The basis for

the Director’s approval is not changed in

this rulemaking, since the substance of

§ 22–3–8(6) is not at issue here. The

Director notes, however, that the

effective date of his approval of § 22–3–

8(6) is now changed to February 21,

1996.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii),

OSM is required to obtain the written

concurrence of the EPA with respect to

those provisions of the proposed

program amendment that relate to air or

water quality standards promulgated

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.). OSM

has determined that the proposed

provision does not pertain to air and

water quality standards. Therefore, EPA

concurrence is not required.

Pursuant to 30 CFR 732.17(h)(11)(i),

OSM solicited comments from the EPA

on the proposed amendment. EPA did

not provide any comments in response

to the request.

V. Director’s Decision

Based on the findings above the

Director is approving the clarification of

the three final rule decisions, the

removal of the required amendment,

and the vacating of its February 21,

1996, retroactive approval of
Federal Register / Vol. 63, No. 134 /Tuesday, July 14, 1998 /Rules and Regulations 37777

amendments to the West Virginia

program.

The Federal regulations at 30 CFR 948

codifying decisions concerning the West

Virginia program are being amended to

implement this decision.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by

the Office of Management and Budget

(OMB) under Executive Order 12866

(Regulatory Planning and Review).

Executive Order 12988

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988

(Civil Justice Reform) and has

determined that, to the extent allowed

by law, this rule meets the applicable

standards of subsections (a) and (b) of

that section. However, these standards

are not applicable to the actual language

of State regulatory programs and

program amendments since each such

program is drafted and promulgated by

a specific State, not by OSM. Under

sections 503 and 505 of SMCRA (30

U.S.C. 1253 and 1255) and 30 CFR

730.11, 732.15, and 732.17(h)(10),

decisions on proposed State regulatory

programs and program amendments

submitted by the States must be based

solely on a determination of whether the

submittal is consistent with SMCRA and

its implementing Federal regulations

and whether the other requirements of

30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

No environmental impact statement is

required for this rule since section

702(d) of SMCRA (30 U.S.C. 1292(d))

provides that agency decisions on

proposed State regulatory program

provisions do not constitute major

Federal actions within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The State submittal

which is the subject of this rule is based

upon corresponding Federal regulations

for which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data for assumptions for the

corresponding Federal regulations.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

or any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface

mining, Underground mining.

Dated: June 28, 1998.

Allen D. Klein,

Regional Director, Appalachian Regional

Coordinating Center.

For the reasons set out in the

preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal

Regulations is amended as set forth

below:

PART 948—WEST VIRGINIA

1. The authority citation for part 948

continues to read as follows:

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

2. Section 948.15 is amended in the

table by adding a new entry in

chronological order by ‘‘Date of Final

Publication’’ to read as follows:

§ 948.15 Approval of West Virginia

regulatory program amendments.

* * * * *

Original

amendment

submission

date

Date of final

publication

Citation/description

* * * * *

February 23,

1998.

July 14, 1998 WV Code

Sections

22B–1–

7(d), 7(h);

22B–3–4.

WV Regulations

CSR 38–

2–

1.2(c)(1).

Vacating of

retroactive

approval

published

on February 21,

1996.

3. Section 948.16 is amended by

removing and reserving paragraph

(ppp), and by revising paragraphs (nnn)

and (ooo) to read as follows:

§ 948.16 Required regulatory program

amendments.

* * * * *

(nnn) By September 14, 1998, West

Virginia must submit either a proposed

amendment or a description of an

amendment to be proposed, together

with a timetable for adoption, to revise

Section 22B–1–7(d) to remove unjust

hardship as a criterion to support the

granting of temporary relief from an

order or other decision issued under

Chapter 22, Article 3 of the West

Virginia Code.

(ooo) By September 14, 1998, West

Virginia must submit either a proposed

amendment or a description of an

amendment to be proposed, together

with a timetable for adoption, to revise

Section 22B–1–7(h) by removing

reference to Article 3, Chapter 22.

* * * * *

[FR Doc. 98–18738 Filed 7–13–98; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF THE TREASURY

Financial Crimes Enforcement

Network

31 CFR Part 103

RIN 1506–AA18

Amendments to the Bank Secrecy Act

Regulations Regarding Reporting and

Recordkeeping by Card Clubs;

Correction

AGENCY: Financial Crimes Enforcement

Network, Treasury.

ACTION: Final rule; correction.

SUMMARY: The Financial Crimes

Enforcement Network (‘‘FinCEN’’)

published in the Federal Register of

January 13, 1998, a final rule amending

the regulations implementing the statute

generally referred to as the Bank Secrecy

Act, to include certain gaming

establishments, commonly called ‘‘card

clubs,’’ ‘‘card rooms,’’ ‘‘gaming clubs,’’

or ‘‘gaming rooms’’ within the definition

of financial institution subject to the

Bank Secrecy Act. This document

contains a correction to the preamble to

the final rule.

DATES: Effective on August 1, 1998.

FOR FURTHER INFORMATION CONTACT:

Leonard C. Senia, Senior Financial

Enforcement Officer, Office of Program

Development, Financial Crimes

Enforcement Network, (703) 905–3931,

or Cynthia L. Clark, Deputy Chief

Counsel, Financial Crimes Enforcement

Network, (703) 905–3758.

SUPPLEMENTARY INFORMATION: In FR Doc.

98–743, published in the Federal