2866 Federal Register / Vol. 66, No. 9 / Friday, January 12, 2001 / Proposed Rules

(a) What event or circumstance caused the

failure and when the event happened or the

circumstance arose. The dates you give

should clearly correspond with the failure

upon which the information penalty is based.

(b) How that event or circumstance kept

you from providing the section 4071

information on time. The explanation you

give should relate directly to the failure to

provide section 4071 information that is the

subject of the information penalty.

(c) Whether the event or circumstance was

beyond your control.

(d) Whether you could have anticipated the

event or circumstance.

(e) How you responded to the event or

circumstance, including what steps you took

(and how quickly you took them) to provide

the section 4071 information and how you

conducted other business affairs. Knowing

how you responded to the event or

circumstance may help us determine what

degree of business care and prudence you

were capable of exercising during that period

and thus whether the failure to provide

section 4071 information could or could not

have been avoided by the exercise of

ordinary business care and prudence.

Section 34 What Are Some Situations That

Might Justify a ‘‘Reasonable Cause’’ Waiver?

The following examples illustrate some of

the reasons often given for failures to provide

section 4071 information for which we may

assess penalties. The situation described in

each example may constitute reasonable

cause, and each example lists factors we

consider in determining whether we should

grant an information penalty waiver for

reasonable cause in a case of that kind.

(a) An individual with responsibility for

taking action was suddenly and

unexpectedly absent or unable to act. We

consider such factors as the following: the

nature of the event that caused the

individual’s absence or inability to act (for

example, the resignation of the individual or

the death or serious illness of the individual

or a member of the individual’s immediate

family); the size of the organization and what

kind of backup procedures it had to cope

with such events; how close the event was

to the deadline that was missed; how abrupt

and unanticipated the event was; how the

individual’s absence or inability to act

prevented compliance; how expensive it

would have been to comply without the

absent individual; whether and how other

business operations and obligations were

affected; how quickly and prudently a

replacement for the absent individual was

selected or other arrangements for

compliance were made; and how quickly a

replacement for the absent individual took

appropriate action.

(b) A fire or other casualty or natural

disaster destroyed relevant records or

prevented compliance in some other way. We

consider such factors as the following: the

nature of the event; how close the event was

to the deadline that was missed; how the

event caused the failure to provide section

4071 information; whether other efforts were

made to get needed information; how

expensive it would have been to comply; and

how you responded to the event.

(c) You reasonably relied on erroneous oral

or written advice given by a PBGC employee.

We consider such factors as the following:

whether there was a clear relationship

between your situation and the advice

sought; whether you provided the PBGC

employee with adequate and accurate

information; and whether the surrounding

circumstances should have led you to

question the correctness of the advice or

information provided.

(d) You were unable to obtain information

(including records and calculations) needed

to comply. We consider such factors as the

following: what information was needed;

why the information was unavailable; when

and how you discovered that the information

was not available; what attempts you made

to get the information or reconstruct it

through other means; and how much it

would have cost to comply.

Section 35 What Is a Siuation That Might

Justify a Partial ‘‘Reasonable Cause’’ Waiver?

Assume that a fire destroyed the records

needed for a required filing of section 4071

information. If in the exercise of ordinary

business care and prudence it should take

you one month to reconstruct the records and

prepare the filing, but the filing was made

two months late, it might be appropriate to

waive that part of the information penalty

attributable to the first month the filing was

late, but not the part attributable to the

second month.

Issued in Washington, D.C., this 5th day of

January, 2001.

David M. Strauss,

Executive Director, Pension Benefit Guaranty

Corporation.

[FR Doc. 01–686 Filed 1–11–01; 8:45 am]

BILLING CODE 7708–01–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 948

[WV–089–FOR]

West Virginia Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; public comment

period and opportunity for public

hearing.

SUMMARY: OSM is announcing receipt of

a proposed amendment to the West

Virginia regulatory program under the

Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The

program amendment consists of a

written response to letters sent to the

State by OSM, in accordance with the

Federal regulations at 30 CFR 732.17(d),

which identify changes to SMCRA and

the Federal regulations that require the

State program to be amended. The

amendment submitted by the State is

intended to render the West Virginia

program no less effective than the

Federal requirements.

DATES: If you submit written comments,

they must be received on or before 4:00

p.m. (local time), on February 12, 2001.

If requested, a public hearing on the

proposed amendments will be held at

1:00 p.m. (local time), on February 6,

2001. Requests to speak at the hearing

must be received by 4:00 p.m. (local

time), on January 29, 2001.

ADDRESSES: Mail or hand-deliver your

written comments and requests to speak

at the hearing to Mr. Roger W. Calhoun,

Director, Charleston Field Office at the

address listed below.

You may review copies of the West

Virginia program, the proposed

amendment, a listing of any scheduled

hearings, and all written comments

received in response to this document at

the addresses below during normal

business hours, Monday through Friday,

excluding holidays. You may receive

one free copy of the proposed

amendment by contacting OSM’s

Charleston Field Office.

Mr. Roger W. Calhoun, Director,

Charleston Field Office, Office of

Surface Mining Reclamation and

Enforcement, 1027 Virginia Street, East,

Charleston, West Virginia 25301,

Telephone: (304) 347–7158. E-mail:

chfo@osmre.gov.

West Virginia Division of

Environmental Protection, 10 McJunkin

Road, Nitro, West Virginia 25143,

Telephone: (304) 759–0515. The

proposed amendment will be posted at

the Division’s Internet page: http://

www.dep.state.wv.us.

In addition, you may review copies of

the proposed amendment during regular

business hours at the following

locations:

Office of Surface Mining Reclamation

and Enforcement, Morgantown Area

Office, 75 High Street, Room 229, P.O.

Box 886, Morgantown, West Virginia

26507, Telephone: (304) 291–4004.

Office of Surface Mining Reclamation

and Enforcement, Beckley Area Office,

323 Harper Park Drive, Suite 3, Beckley,

West Virginia 25801, Telephone: (304)

255–5265.

FOR FURTHER INFORMATION CONTACT: Mr.

Roger W. Calhoun, Director, Charleston

Field Office; Telephone: (304) 347–

7158.

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia

Program

On January 21, 1981, the Secretary of

the Interior conditionally approved the

Federal Register / Vol. 66, No. 9 / Friday, January 12, 2001 / Proposed Rules 2867

West Virginia program. You can find

background information on the West

Virginia program, including the

Secretary’s findings, the disposition of

comments, and the conditions of

approval in the January 21, 1981,

Federal Register (46 FR 5915–5956).

You can find later actions concerning

the conditions of approval and program

amendments at 30 CFR 948.10, 948.12,

948.13, 948.15, and 948.16.

II. Discussion of the Proposed

Amendment

By letter dated December 20, 2000

(Administrative Record Number WV–

1191), the WVDEP submitted an

amendment to its program. The program

amendment consists of a written

response to letters sent to the State by

OSM in accordance with the Federal

regulations at 30 CFR 732.17(d). 30 CFR

732.17(d) provides that OSM must

notify the State of all changes in

SMCRA and the Federal regulations

which will require an amendment to the

State program. Such letters sent by OSM

are often referred to as ‘‘732 letters.’’

The amendment submitted by the State

is intended to render the West Virginia

program no less effective than the

Federal requirements.

In the December 20, 2000, letter, item

2. concerns a 732 letter dated February

7, 1990, and regulations concerning the

exemption for coal extraction incidental

to the extraction of other minerals

removed for purposes of commercial use

or sale. The WVDEP stated that it will

develop and submit a rule package for

the 2002 legislative session which will

contain counterparts to the Federal

regulations at 30 CFR Part 702.

Therefore, when the State legislature

approves new provisions that are

intended to satisfy the issues concerning

the adequacy of the special reclamation

fund, and those provisions are

submitted to OSM for review and

approval, we will announce the

proposed provisions in a future

proposed rule notice published in the

Federal Register. At that time we will

invite public comment on whether those

provisions satisfy the relevant issues

that were identified in the February 7,

1990, 732 letter concerning the

exemption for coal extraction incidental

to the extraction of other minerals

removed for purposes of commercial use

or sale.

At item 3. in the December 20, 2000,

letter, the WVDEP stated that it has

addressed the issues presented in the

732 letter dated October 1, 1991,

concerning the adequacy of the special

reclamation fund. The WVDEP stated

that these 732 issues are the same as

those codified in the Federal regulations

at 30 CFR 948.16(jjj), (kkk), and (lll).

The WVDEP stated that it has addressed

its intentions concerning these issues in

a letter to OSM dated August 31, 2000.

The August 31, 2000, letter states that

the WVDEP is actively working to

address these issues, and that

permanent changes to the West Virginia

bonding program must be presented to

the state legislature. The WVDEP

timeline, the letter stated, provides an

opportunity for this issue to be taken up

by the 2001 legislature. Therefore, when

the State legislature approves new

provisions that are intended to satisfy

the issues concerning the adequacy of

the special reclamation fund, and those

provisions are submitted to OSM for

review and approval, we will announce

the proposed provisions in a future

proposed rule notice published in the

Federal Register. At that time we will

invite public comment on whether those

provisions satisfy the relevant issues

that were identified in the October 1,

1991, 732 letter and the required

program amendments codified at 30

CFR 948.16(jjj), (kkk), and (lll).

In its December 20, 2000, letter, at

item 4., the WVDEP stated that the State

has submitted in a letter to OSM dated

April 27, 1997, a program amendment

implementing the Energy Policy Act of

1992. On February 9, 1999 (64 FR 6201)

we published our final rule notice in the

Federal Register concerning that

amendment. On February 28, 2000 (65

FR 10388), we published a correction

notice in the Federal Register

concerning the February 9, 1999, notice.

Since the WVDEP has not submitted any

additional information in the December

20, 2000, letter concerning

implementation of the Energy Policy

Act of 1992, item 4. will not be a part

of this rulemaking.

In its December 20, 2000, letter, at

item 5. (inadvertently identified as item

6.), the WVDEP stated that OSM is in

the process of revising its ownership

and control regulations in response to a

court decision. The WVDEP further

stated that OSM has indicated that it

will reissue a 732 letter concerning

ownership and control in January 2001.

Consequently, the WVDEP has not

provided any other response to the 732

letter dated December 24, 1996,

concerning changes and additions to

existing ownership and control rules at

30 CFR parts 701, 773, 778, 840, and

843. Therefore, item 5. will not be

addressed in this rulemaking. On

December 19, 2000, OSM published its

revised regulations concerning

ownership and control in the Federal

Register (65 FR 79582). In the near

future, OSM will provide the WVDEP

with a 732 letter detailing the changes

that need to be made to the State

program as a consequence of the new

Federal provisions.

In its December 20, 2000, letter, the

State’s responses at item 6.F., 6.G., 6.H.,

and 6.I. indicate that the WVDEP will

submit draft proposed language to the

State legislature for consideration for

rulemaking during its 2002 session. The

WVDEP intends that the draft proposed

language would satisfy specific issues

identified in the 732 letters. When the

State legislature approves new rules that

are intended to satisfy specific 732

issues, and those rules are submitted to

OSM for review and approval, we will

announce the proposed rules in a future

proposed rule notice published in the

Federal Register. At that time we will

invite public comment on whether those

rules satisfy the relevant 732 letters.

In the December 20, 2000, letter, at

item 6.J., concerning bond release

requirements, the WVDEP stated that it

will revise the bond release application

to include a written, notarized statement

by the permittee that all applicable

reclamation requirements specified in

the permit have been completed. Since

the WVDEP has not submitted specific

program changes in its December 20,

2000, letter concerning this issue, item

6.J. will not be part of this rulemaking.

In the December 20, 2000, letter, item

7., concerning staffing level supporting

the approved program, the WVDEP

stated that the State has previously

submitted a staffing plan and schedule

to OSM. Since the WVDEP has not

submitted specific program changes in

its December 20, 2000, letter concerning

this issue, item 7. will not be part of this

rulemaking.

You will find West Virginia’s program

amendment presented below. In each

item, the State first identifies the 732

letter and the issue, followed by its

response to the issue.

1. 732 letter dated March 6, 1990—30

CFR 816.116(b)(3)(i)—Federal rules

have been revised to require that

minimum stocking and planting

arrangements for areas developed for

fish and wildlife habitat, recreation,

shelterbelts or forest products be

specified by the regulatory authority

after consultation with and approval by

the state agencies responsible for

administration of forest and wildlife

programs. Consultation and approval

may occur as either a program-wide or

permit-specific basis.

State response: Consultation and

approval occurs on a permit-specific

basis. In fact, the wildlife plans are

prepared by a biologist from the

Division of Natural Resources.

2. 732 letter dated July 22, 1997.

2868 Federal Register / Vol. 66, No. 9 / Friday, January 12, 2001 / Proposed Rules

2.A. 30 CFR 701.5 ‘‘other treatment

facilities’’.

State response: The state does not

need this term. There is a definition for

‘‘sediment control or other water

retention structure, sediment control or

other water retention system or

sediment or sediment pone’’ at [CSR]

38–2–2.110 and ‘‘chemical treatment’’ at

[CSR] 38–2–2.21.

2.B. 30 CFR 701.5 ‘‘previously mined

area’’.

State response: The state does not

need the definition of ‘‘previously

mined area.’’ The term is used in the

state’s regulations in conjunction with

remining operations. Furthermore, the

federal definition of ‘‘previously mined

area’’ and ‘‘remining’’ contradicts the

definition of ‘‘lands eligible for

remining’’.

2.C. 30 CFR 701.5 ‘‘siltation

structure’’.

State response: The state does not

need the definition of ‘‘siltation

structure’’. This term is defined in the

federal rule as ‘‘a sedimentation pond’’

and corresponds to the state’s definition

found at [CSR] 38–2–2.110.

2.D. 30 CFR 761.5 ‘‘significant

recreational, timber, economic, other

values incompatible with surface coal

mining operations’’ as it relates to

federal lands.

State response: The state does not

need to define this term since [30 CFR]

740.4 states that this determination is

the responsibility of the secretary.

Furthermore, there is nothing in state or

federal regulation that would restrict the

secretary from using [30 CFR] 761.5 in

his determination.

2.E. 30 CFR 780.25—Revise the state

program to add specific references to

NRCS Technical Release No. 60 criteria

for dam classification.

State response: Since the state

references its Dam Control Act (which

contains a dam classification similar to

TR–60), it does not need to reference the

NRCS criteria.

2.F. 30 CFR 816.49—Performance

standards were revised for

impoundments to impoundments by

referencing NRCS TR–60 and require

impoundments meeting Class B or C

criteria to comply with the same

stability, spillway, foundation, etc. as

impoundments meeting MSHA criteria

in 30 CFR 77.216(a).

State response: Since the state

references its Dam Control Act, its

requirements contain similar standards

to those contained in 30 CFR 816.49.

2.G. 30 CFR 816.81(a)— * * * Coal

mine waste shall be hauled or conveyed

and placed for final placement in a

controlled manner to * * *.

State response: The state does not

need to revise its rules at [CSR] 38–2–

22.5 since the state’s rules at [CSR] 38–

2–22.3.p. has procedures for the

spreading and compaction of refuse

material for final placement. It states

‘‘the material shall be compacted in

layers not exceeding two feet in

thickness * * *’’. This is similar to 30

CFR 77.215(h).

2.H. 30 CFR 816.104(a)—‘‘Thin

Overburden’’ definition. 30 CFR

816.105(a)—‘‘Thick Overburden’’

definition.

State response: The state does not

need to amend its rule. The statute at

[W.Va. Code] 22–3–13(b)(3) defines

‘‘think’’ [sic; thin] and ‘‘thick’’

overburden and has similar language to

that contained in 30 CFR 816.104(a) and

30 CFR 816.105(a).

30 CFR 840.11(g)(4)–30 CFR

840.11(h)—Inspection frequencies at

abandoned sites.

State response: The state has existing

process that addresses whether and to

what extent a forfeited site poses or may

reasonably be expected to pose

imminent danger to the health and

safety of the public or significant harm

to land and water resources. This

process has not been codified.

3. 732 letter dated August 22, 2000—

Subsidence due to underground mining

is not a surface coal mining operation

and it is not prohibited in areas

protected under section 552(e) of the

Surface Mining Control and

Reclamation Act.

State response: The state does not

need to amend its rule. Section [W.Va.

Code] 22–3–22(d) applies to surface

mining operations rather than to

underground activities.

4. 732 letter dated August 22, 2000—

Valid Existing Rights.

State response: The state does not

need to amend its rule since the existing

rule is as effective as its federal

counterpart.

III. Public Comment Procedures

In accordance with the provisions of

30 CFR 732.17(h), OSM is seeking

comments, on whether the proposed

amendment satisfies the applicable

program approval criteria of 30 CFR

732.15. If the amendment is deemed

adequate, it will become part of the

West Virginia program.

Written Comments

If you submit written or electronic

comments on the proposed amendment

during the 30-day comment period, they

should be specific, should be confined

to issues pertinent to the notice, and

should explain the reason for your

recommendation(s). We may not be able

to consider or include in the

Administrative Record comments

delivered to an address other than the

one listed above (see ADDRESSES).

Electronic Comments

Please submit Internet comments as

an ASCII, Word Perfect, or Word file

avoiding the use of special characters

and any form of encryption. Please also

include ‘‘Attn: SPATS NO. WV–089–

FOR’’ and your name and return address

in your Internet message. If you do not

receive a confirmation that we have

received your Internet message, contact

the Charleston Field office at (304) 347–

7158.

Availability of Comments

Our practice is to make comments,

including names and home addresses of

respondents, available for public review

during our regular business hours at the

OSM Administrative Record Room (see

ADDRESSES). Individual respondents

may request that we withhold their

home address from the rulemaking

record, which we will honor to the

extent allowable by law. There also may

be circumstances in which we would

withhold from the rulemaking record a

respondent’s identity, as allowable by

law. If you wish us to withhold your

name and/or address, you must state

this prominently at the beginning of

your comment. However, we will not

consider anonymous comments. We

will make all submissions from

organizations or businesses, and from

individuals identifying themselves as

representatives or officials of

organizations or businesses, available

for public inspection in their entirety.

Public Hearing

If you wish to speak at the public

hearing, you should contact the person

listed under FOR FURTHER INFORMATION

CONTACT by 4:00 p.m. (local time), on

January 29, 2001. The location and time

of the hearing will be arranged with

those persons requesting the hearing. If

no one requests an opportunity to speak

at the public hearing, the hearing will

not be held.

To assist the transcriber and ensure an

accurate record, we request, if possible,

that each person who testifies at a

public hearing provide us with a written

copy of his or her testimony. The public

hearing will continue on the specified

date until all persons scheduled to

speak have been heard. If you are in the

audience and have not been scheduled

to speak and wish to do so, you will be

allowed to speak after those who have

been scheduled. We will end the

hearing after all persons scheduled to

speak and persons present in the

Federal Register / Vol. 66, No. 9 / Friday, January 12, 2001 / Proposed Rules 2869

audience who wish to speak have been

heard.

Any disabled individual who has

need for a special accommodation to

attend a public hearing should contact

the individual listed under FOR FURTHER

INFORMATION CONTACT.

Public Meeting

If only one person requests an

opportunity to speak at a hearing, a

public meeting, rather than a public

hearing, may be held. If you wish to

meet with OSM representatives to

discuss the proposed amendment, you

may request a meeting by contacting the

person listed under FOR FURTHER

INFORMATION CONTACT. All such meetings

will be open to the public and, if

possible, notices of meetings will be

posted at the locations listed under

ADDRESSES. A written summary of each

meeting will be made a part of the

Administrative Record.

IV. Procedural Determinations

Executive Order 12866—Regulatory

Planning and Review

This rule is exempted from review by

the Office of Management and Budget

under Executive Order 12866.

Executive Order 12630—Takings

This rule does not have takings

implications. This determination is

based on the analysis performed for the

counterpart federal regulation.

Executive Order 13132—Federalism

This rule does not have federalism

implications. SMCRA delineates the

roles of the federal and state

governments with regard to the

regulation of surface coal mining and

reclamation operations. One of the

purposes of SMCRA is to ‘‘establish a

nationwide program to protect society

and the environment from the adverse

effects of surface coal mining

operations.’’ Section 503(a)(1) of

SMCRA requires that state laws

regulating surface coal mining and

reclamation operations be ‘‘in

accordance with’’ the requirements of

SMCRA, and section 503(a)(7) requires

that state programs contain rules and

regulations ‘‘consistent with’’

regulations issued by the Secretary

pursuant to SMCRA.

Executive Order 12988—Civil Justice

Reform

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988 and

has determined that, 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

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

1292(d)) provides that a decision on a

proposed state regulatory program

provision does not constitute a major

federal action within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (NEPA) (42

U.S.C. 4332(2)(C)). A determination has

been made that such decisions are

categorically excluded from the NEPA

process (516 DM 8.4.A).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by the Office of

Management and Budget 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 counterpart federal regulations for

which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

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 and assumptions for the

counterpart federal regulation.

Small Business Regulatory Enforcement

Fairness Act

This rule is not a major rule under 5

U.S.C. 804(2), the Small Business

Regulatory Enforcement Fairness Act.

This rule:

a. Does not have an annual effect on

the economy of $100 million.

b. Will not cause a major increase in

costs or prices for consumers,

individual industries, federal, state, or

local government agencies, or

geographic regions.

c. Does not have significant adverse

effects on competition, employment,

investment, productivity, innovation, or

the ability of U.S. based enterprises to

compete with foreign-based enterprises.

This determination is based upon the

fact that the state submittal which is the

subject of this rule is based upon

counterpart federal regulations for

which an analysis was prepared and a

determination made that the federal

regulation was not considered a major

rule.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 948

Intergovernmental relations, Surface

mining, Underground mining.

Dated: January 5, 2001.

Michael K. Robinson,

Acting Regional Director, Appalachian

Regional Coordinating Center.

[FR Doc. 01–1059 Filed 1–11–01; 8:45 am]

BILLING CODE 4310–05–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 2

[FRL–6933–1]

Public Information and Confidentiality:

Rescheduling of a PreviouslyAnnounced Public Meeting

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is rescheduling the

public meeting on its advance notice of

proposed rulemaking (ANPRM) and

potential revision of the confidential

business information (CBI) regulations

scheduled for January 18, 2001, as

advertised in the December 21, 2000

Federal Register (65 FR 80394).

DATES: This meeting has been

rescheduled for Wednesday, March 7,

2001 from 9 a.m. to 4:30 p.m. in the EPA

Auditorium, 401 M Street, SW.,

Washington, DC. The meeting has been

rescheduled based on requests from the

public to allow additional time for

stakeholder participation and to avoid