Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52677 

§ 4.7 [Amended] 

■ 2. Amend § 4.7 by removing from the 

first sentence of paragraph (b)(2) the 

words ‘‘subject to the effective date 

provided in paragraph (b)(5) of this 

section,’’ and removing paragraph (b)(5). 

PART 122—AIR COMMERCE 

REGULATIONS 

■ 3. The general authority citation for 

part 122 continues to read as follows: 

Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 

1431, 1433, 1436, 1448, 1459, 1590, 1594, 

1623, 1624, 1644, 1644a, 2071 note. 

* * * * * 

§ 122.48a [Amended] 

■ 4. Amend § 122.48a by removing from 

the first sentence of paragraph (a) the 

words ‘‘and subject to paragraph (e) of 

this section,’’ and removing paragraph 

(e). 

PART 123—CUSTOMS RELATIONS 

WITH CANADA AND MEXICO 

■ 5. The general authority citation for 

part 123 continues to read as follows: 

Authority: 19 U.S.C. 66, 1202 (General 

Note 3(i)), Harmonized Tariff Schedule of the 

United States (HTSUS), 1431, 1433, 1436, 

1448, 1624, 1646c, 2071 note. 

* * * * * 

§ 123.91 [Amended] 

■ 6. Amend § 123.91 by removing from 

the first sentence of paragraph (a) the 

words ‘‘and subject to paragraph (e) of 

this section,’’ and removing paragraph 

(e). 

§ 123.92 [Amended] 

■ 7. Amend § 123.92 by removing from 

the first sentence of paragraph (a) the 

words ‘‘and subject to paragraph (e) of 

this section,’’ and removing paragraph 

(e). 

PART 192—EXPORT CONTROL 

■ 8. The general authority citation for 

part 192 continues to read as follows: 

Authority: 19 U.S.C. 66, 1624, 1646c. 

Subpart A also issued under 19 U.S.C. 1627a, 

1646a, 1646b; subpart B also issued under 13 

U.S.C. 303; 19 U.S.C. 2071 note; 46 U.S.C. 91. 

* * * * * 

§ 192.14 [Amended] 

■ 9. Amend § 192.14 by removing from 

the first sentence of paragraph (a) the 

words ‘‘and subject to paragraph (e) of 

this section,’’ and removing paragraph 

(e). 

Dated: October 8, 2009. 

Jayson P. Ahern, 

Acting Commissioner, Customs and Border 

Protection. 

[FR Doc. E9–24668 Filed 10–13–09; 8:45 am] 

BILLING CODE 9111–14–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 301 

[TD 9462] 

RIN 1545–BH91 

Disregarded Entities and Excise Taxes; 

Correction 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Correction to final and 

temporary regulations. 

SUMMARY: This document contains a 

correction to final and temporary 

regulations (TD 9462) that were 

published in the Federal Register on 

Monday, September 14, 2009, clarifying 

that a single-owner eligible entity that is 

disregarded as an entity separate from 

its owner for any purpose, but regarded 

as a separate entity for certain excise tax 

purposes, is treated as a corporation for 

tax administration purposes related to 

those excise taxes. 

DATES: This correction is effective on 

October 14, 2009, and is applicable on 

September 14, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Michael H. Beker, (202) 622–3070 (not 

a toll-free number). 

SUPPLEMENTARY INFORMATION: 

Background 

The final and temporary regulations 

that are the subject of this document is 

under section 7701 of the Internal 

Revenue Code. 

Need for Correction 

As published on Monday, September 

14, 2009 (74 FR 46903), the final and 

temporary regulations (TD 9462) contain 

an error that may prove to be misleading 

and is in need of clarification. 

Correction of Publication 

Accordingly, the publication of the 

final and temporary regulations (TD 

9462), which was the subject of FR Doc. 

E9–21987, is corrected as follows: 

On page 46904, column three, the 

signature line, the word ‘‘Mundace’’ is 

corrected to read ‘‘Mundaca’’. 

Diane O. Williams, 

Federal Register Liaison, Publications and 

Regulations Branch, Legal Processing 

Division, Associate Chief Counsel, (Procedure 

and Administration). 

[FR Doc. E9–24656 Filed 10–13–09; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 950 

[SATS No. WY–035–FOR; Docket ID: OSM– 

2009–0003] 

Wyoming Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule; approval of 

amendment with certain exceptions. 

SUMMARY: We are issuing a final 

decision on an amendment to the 

Wyoming regulatory program (the 

‘‘Wyoming program’’) under the Surface 

Mining Control and Reclamation Act of 

1977 (‘‘SMCRA’’ or ‘‘the Act’’). Our 

decision approves in part, disapproves 

in part and defers in part the 

amendment. Wyoming proposed 

revisions to and additions of rules 

concerning self-bonding requirements 

(Administrative Record No. WY–40–01) 

under SMCRA (30 U.S.C. 1201 et seq.). 

Wyoming sent the amendment to reflect 

changes made at its own initiative. 

Wyoming intends to revise its program 

to increase the flexibility of its selfbonding program and at the same time 

not increase the risk to the State. 

DATES: Effective Date: October 14, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey W. Fleischman, Telephone: 

307.261.6550, E-mail address: 

jfleischman@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Wyoming Program 

II. Submission of the Proposed Amendment 

III. Office of Surface Mining Reclamation and 

Enforcement’s (OSM’s) Findings 

IV. Summary and Disposition of Comments 

V. OSM’s Decision 

VI. Procedural Determinations 

I. Background on the Wyoming 

Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 


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52678 Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 

by demonstrating that its State program 

includes, among other things, ‘‘a State 

law which provides for the regulation of 

surface coal mining and reclamation 

operations in accordance with the 

requirements of this Act * * *; and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to this Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the Wyoming 

program on November 26, 1980. You 

can find background information on the 

Wyoming program, including the 

Secretary’s findings, the disposition of 

comments, and the conditions of 

approval of the Wyoming program in 

the November 26, 1980, Federal 

Register (45 FR 78637). You can also 

find later actions concerning Wyoming’s 

program and program amendments at 30 

CFR 950.12, 950.15, 950.16, and 950.20. 

II. Submission of the Proposed 

Amendment 

By letter dated March 7, 2006, 

Wyoming submitted a proposed 

amendment to its program rules 

concerning self-bonding requirements 

(Administrative Record No. WY–40–01) 

under SMCRA (30 U.S.C. 1201 et seq.). 

Wyoming sent the amendment to reflect 

changes made at its own initiative. The 

provisions of Wyoming’s Coal Rules and 

Regulations that Wyoming proposed to 

revise and add were: Chapter 1, Section 

2(k), definition of the term ‘‘bond;’’ 

Chapter 11, Section 2(a)(vii)(A), dealing 

with self-bonding application 

informational requirements concerning 

certain indicators of financial strength 

of an applicant; Chapter 11, Section 

2(a)(xii)(A), dealing with certain selfbonding mandatory criteria, including 

various ratio measures of financial 

strength and percent limits of selfbonding obligations versus percent of 

tangible net worth for operator selfbonding applicants; Chapter 11, Section 

2(a)(xii)(B), dealing with certain selfbonding mandatory criteria, including 

various ratio measures of financial 

strength and percent limits of selfbonding obligations versus percent of 

tangible net worth for parent corporate 

guarantor self-bonding applicants; 

Chapter 11, Section 2(a)(xii)(D), dealing 

with self-bonding application 

informational requirements for selfbonding operator applicants that choose 

to include assets outside of the United 

States in establishing their tangible net 

worth; and Chapter 11, Section 

2(a)(xii)(E), detailing information that 

the regulatory authority will require if it 

accepts a foreign parent or non-parent 

corporate guarantee. 

We announced receipt of the 

proposed amendment in the April 21, 

2006 Federal Register (71 FR 20604), 

provided an opportunity for a public 

hearing or meeting on its substantive 

adequacy, and invited public comment 

on its adequacy (Administrative Record 

No. WY–40–07). Because no one 

requested a public hearing or meeting, 

none was held. The public comment 

period ended on May 22, 2006. We 

received comments from two mining 

associations and one Federal agency. 

During our review of the amendment, 

we identified concerns relating to the 

newly-created provisions of Wyoming’s 

Coal Rules and Regulations at Chapter 

11, Section 2(a)(xii)(D) and (E) that 

would authorize the Administrator to 

accept guarantees from foreign 

companies for self-bonds for domestic 

mining companies and allow the 

inclusion of foreign assets as part of a 

company’s tangible net worth when 

determining eligibility to guarantee a 

self-bond. We notified Wyoming of our 

concerns by letter dated May 26, 2006 

(Administrative Record No. WY–40–08). 

Wyoming responded in a letter dated 

June 23, 2006, by submitting additional 

explanatory information in lieu of 

changing the proposed rule language, as 

we suggested in our issue letter 

(Administrative Record No. WY–40–09). 

Based upon Wyoming’s additional 

explanatory information for its 

amendment, we reopened the public 

comment period in the July 31, 2006 

Federal Register (71 FR 43092); 

Administrative Record No. WY–40–10). 

The public comment period ended on 

August 15, 2006. We received comments 

from one industry group. 

In separate letters dated September 

20, 2007 and May 13, 2008, we 

requested that Wyoming clarify the 

characterization and meaning of its 

‘‘Statement of Reasons’’ and rationale 

that was submitted in support of the 

proposed rule changes at Chapter 11, 

Section 2(a)(xii)(A) and (B) concerning 

tangible net worth limits 

(Administrative Record Nos. WY–40–13 

and WY–40–15). Wyoming responded to 

our requests on March 24 and July 1, 

2008, respectively (Administrative 

Record Nos. WY–40–14 and WY–40– 

16), and are discussed in Finding 

III.A.3. below. 

III. OSM’s Findings 

30 CFR 732.17(h)(10) requires that 

State program amendments meet the 

criteria for approval of State programs 

set forth in 30 CFR 732.15, including 

that the State’s laws and regulations are 

in accordance with the provisions of the 

Act and consistent with the 

requirements of 30 CFR Part 700. In 30 

CFR 730.5, OSM defines ‘‘consistent 

with’’ and ‘‘in accordance with’’ to 

mean (a) with regard to SMCRA, the 

State laws and regulations are no less 

stringent than, meet the minimum 

requirements of, and include all 

applicable provisions of the Act and (b) 

with regard to the Federal regulations, 

the State laws and regulations are no 

less effective than the Federal 

regulations in meeting the requirements 

of SMCRA. 

Following are the findings we made 

concerning the amendment under 

SMCRA and the Federal regulations at 

30 CFR 732.15 and 732.17. 

A. Revisions to Wyoming’s Rules That 

Are Not the Same as the Corresponding 

Provisions of SMCRA and/or the Federal 

Regulations 

1. Chapter 1, Section 2(k), Definition of 

‘‘Bond’’ 

In addition to several format changes, 

the Wyoming Land Quality Division 

(LQD), at its own initiative, proposes to 

revise its rules at Chapter 1, Section 

2(k). The currently approved Wyoming 

provision at Chapter 1, Section 2(k) is in 

accordance with the Federal counterpart 

provision at 30 CFR 800.12 and defines 

‘‘bond’’ to include surety bonds, letters 

of credit, cash, or a combination of any 

of these bonding methods in lieu of a 

surety bond or self-bond instrument. 

Wyoming proposes to expand the 

definition of ‘‘bond’’ to allow the 

Administrator to accept alternative 

financial assurances which provide 

comparable levels of assurance for 

reclamation performance, and require 

OSM approval of the alternative 

assurances. As proposed, the definition 

of ‘‘bond’’ at Chapter 1, Section 2(k) 

would read as follows: 

(k) ‘‘Bond’’ means a surety or self-bond 

instrument by which the permit applicant 

assures faithful performance of all 

requirements of the Act, all rules and 

regulations promulgated thereunder, and the 

provisions of the permit and license to mine. 

The term shall also include the following, 

which the operator has deposited with the 

Department of Environmental Quality in lieu 

of a Surety Bond or Self-Bond Instrument: 

(i) Federal insured certificates of deposit; 

(ii) Cash; 

(iii) Government securities; 

(iv) Irrevocable letters of credit; 

(v) An alternative method of financial 

assurance that is acceptable to the 

Administrator and provides for a comparable 

level of assurance for performance of 

reclamation obligations. The alternative 

method of financial assurance must first be 

approved by the Office of Surface Mining; or 

(vi) A combination of any of these bonding 

methods. 

In its ‘‘Statement of Reasons,’’ the 

LQD notes that the proposed rule allows 


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for some flexibility in evaluating 

alternative financial assurances but still 

requires OSM approval before the 

instruments may be accepted. OSM 

evaluates alternative bonding systems to 

assure that the regulatory authority will 

have sufficient money available to 

complete the reclamation plan for any 

areas which may be in default at any 

time, and provide a substantial 

economic incentive for the operator to 

comply with all reclamation provisions. 

The Federal regulations at 30 CFR 

800.12 provide that the regulatory 

authority may allow for— 

(a) A surety bond; 

(b) A collateral bond; 

(c) A self-bond; or 

(d) A combination of any of these 

bonding methods. 

The preamble to 30 CFR 800.12 states 

that the rule lists the three types of 

bonds mentioned because those are 

three types authorized under section 

509 of SMCRA. See the July 19, 1983 

Federal Register (48 FR 32940). 

However, section 509(c) also provides 

that the Secretary may approve, as part 

of a State or Federal program, an 

alternative system that will meet the 

objectives and purposes of the bonding 

program under section 509. An 

alternative bonding system must meet 

the requirements of section 509(c) of the 

Act, as implemented by 30 CFR 

800.11(e), in order to be approved by the 

Secretary. See the August 10, 1983 

Federal Register (48 FR 36418). 

The Federal regulations at 30 CFR 

800.11(e) establish the criteria for 

approval of an alternative bonding 

system. Specifically, an alternative 

bonding system must assure (1) 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) 

that the alternative will provide a 

substantial economic incentive for the 

permittee to comply with all 

reclamation provisions. 

Wyoming’s proposed rule change is 

too general to meet those standards for 

approval. Wyoming does not identify a 

specific alternative bonding system in 

its proposed rule. Rather, it allows a 

permit applicant to submit an undefined 

alternative method of financial 

assurance that has not yet been 

approved by the Office of Surface 

Mining as part of the Wyoming program 

to the LQD Administrator for 

acceptance. Consistent with the state 

program amendment process outlined at 

30 CFR 732.17, an alternative method of 

financial assurance (i.e., an alternate 

bonding system) must be approved by 

OSM as part of a state program before 

it can be implemented. For example, if 

and when Wyoming submits a specific 

alternative method of financial 

assurance (i.e., an alternate bonding 

system) to us, we will review that 

submittal as a proposed state program 

amendment to ensure that it meets the 

criteria in 30 CFR 800.11(e). If we 

ultimately approve Wyoming’s 

submission as part of its program, only 

then will the Administrator have the 

authority to accept and implement the 

alternative method of financial 

assurance when it is submitted by an 

applicant. In this respect, nothing is 

gained by the current Wyoming 

proposal. For the reasons discussed 

above, we are deferring our decision on 

Wyoming’s proposed rule change as it is 

not ripe for making a determination at 

this time. 

2. Chapter 11, Section 2(a)(vii)(A), 

Rating Organizations 

At its own initiative, Wyoming 

proposes to revise its rules at Chapter 

11, Section 2(a)(vii) which specifies 

informational requirements for selfbond applications. Among other things, 

an operator self-bonding applicant must 

submit information establishing that it 

meets one of three criteria related to 

financial strength in its application. 

This proposed rule change would 

modify the alternate financial criterion 

dealing with ratings by certain statistical 

ratings organizations. 

The current Wyoming regulations 

provide that, as one of the three 

alternate showings required under 

Section 2(a)(vii), an operator must show 

that it has a rating for all bond issuance 

actions over the past five years of ‘‘A’’ 

or higher as issued by either Moody’s 

Investor Service (Moody’s) or Standard 

and Poor’s Corporation (Standard and 

Poor’s). Wyoming proposes to amend 

paragraph (A) to allow operators to use 

any ‘‘nationally-recognized statistical 

rating organization’’ (NRSRO) as 

approved by the Securities and 

Exchange Commission (SEC), if 

acceptable to the regulatory authority, to 

establish its rating for all bond issuance 

actions over the past five years. If an 

SEC-approved NRSRO acceptable to the 

regulatory authority uses a rating system 

different from Moody’s and Standard 

and Poor’s, the operator must show that 

its rating by the NRSRO is equivalent to 

a rating of ‘‘A’’ or higher by either 

Moody’s or Standard and Poor’s. 

In its ‘‘Statement of Reasons,’’ the 

LQD notes that the proposed rule 

change incorporates the provision that 

any alternate firm must be acceptable to 

the regulatory authority to qualify, 

which allows for case-by-case 

evaluations. Further, the alternative 

organization’s rating designation must 

be evaluated against Moody’s or 

Standard and Poor’s designations to 

ensure consistency and, since various 

rating organizations with strong 

credentials are available, the options for 

rating should not be limited to only two 

firms. 

The counterpart Federal self-bonding 

regulations at 30 CFR 800.23(b)(3) also 

specify informational requirements for 

self-bond applications and require that 

applicants submit information 

establishing that they meet one of three 

criteria related to financial strength in 

their application. The Federal financial 

criterion in subparagraph (i), dealing 

with ratings by certain statistical ratings 

organizations, requires that an applicant 

for a self-bond (or its parent corporation 

guarantor or other corporate guarantor) 

have ‘‘a current rating for its most recent 

bond issuance of ‘A’ or higher as issued 

by either Moody’s Investor Service or 

Standard and Poor’s Corporation.’’ 

The rationale for that regulation is set 

forth in the preamble at 48 FR 36422 

(August 10, 1983): 

A rating by Standard and Poor’s or 

Moody’s of ‘‘A’’ or higher under Section 

800.23(b)(3)(i) and a tangible net worth of at 

least four times the bond amount under 

Section 800.23(d) together will assure a low 

risk of company bankruptcy for those 

companies choosing to qualify under Section 

800.23(b)(3)(i), rather than under Section 

800.23(b)(3)(ii) or (iii). In order to rate the 

bond issuance of a company, these ratings 

services do thorough studies of the financial 

records of the issuing firms to determine 

ability to repay the bonds. The services are 

relied upon heavily by creditors and 

maintain a high rate of predictive success. 

On September 29, 2006, the President 

signed the Credit Rating Agency Reform 

Act of 2006 into law (Pub. L. 109–291, 

16 Stat. 1327). The law was enacted to, 

among other things, ‘‘improve ratings 

quality for the protection of investors 

and in the public interest by fostering 

accountability, transparency, and 

competition in the credit rating 

industry.’’ Report of the Senate 

Committee on Banking, Housing and 

Urban Affairs to Accompany S. 3850, 

Credit Rating Agency Reform Act of 

2006, S. Report No. 109–326, 109th 

Cong. 2d Sess. (Sept. 6, 2006), p. 1. On 

June 18, 2007 (72 FR 33564), the SEC 

adopted final regulations implementing 

the new law. 

On June 28, 2007, the SEC announced 

that seven (7) credit rating agencies 

previously identified as NRSRO’s 

(Moody’s Investors Service; Standard & 

Poor’s Rating Services; Fitch, Inc.; A.M. 

Best Co., Inc.; DBRS (Dominion Bond 

Rating Service Limited); Japan Credit 

Rating Agency, Ltd.; and Rating and 

Investment Information, Inc.) could 


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52680 Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 

continue to represent themselves or act 

as NRSROs while the SEC processed 

their registration applications. SEC 

Allows Existing Credit Rating Agencies 

to Act as NRSROs, Dechert on Point 

(July 2007). 

Moody’s and Standard and Poor’s 

have over 80% of the credit rating 

industry market share as measured by 

revenues according to the Report of the 

Senate Committee on Banking, Housing 

and Urban Affairs to Accompany S. 

3850, Credit Rating Agency Reform Act 

of 2006, S. Report No. 109–326, 109th 

Cong. 2d Sess. (Sept. 6, 2006). One of 

the purposes of the Credit Rating 

Agency Reform Act of 2006 was to open 

up the credit rating industry to 

competition. Wyoming’s proposed 

amendment allows an operator to use 

bond ratings from an NRSRO only if it 

is both approved by the SEC and 

acceptable to the regulatory authority, 

and thereby ensures that only ratings by 

reliable NRSRO’s are used as a measure 

of a company’s financial strength. We 

find that Wyoming’s proposed rule 

change is consistent with the Credit 

Rating Agency Reform Act of 2006 and 

its implementing regulations and that its 

adoption will not make Wyoming’s 

rules less effective than the 

corresponding Federal regulations at 30 

CFR 800.23(b)(3)(i) and (c). We approve 

Wyoming’s proposed rule change. 

3. Chapter 11, Section 2(a)(xii)(A) & (B), 

Tangible Net Worth Limits 

At its own initiative, Wyoming 

proposes to revise its rules at Chapter 

11, Section 2(a)(xii)(A) and (B). 

Wyoming’s existing language at Chapter 

11, Section 2(a)(xii)(A) and (B) is 

substantively identical to Federal 

counterpart provisions at 30 CFR 

800.23(d). Chapter 11, Section 

2(a)(xii)(A) and (B) set forth certain 

restrictions on the regulatory authority’s 

authority to accept self-bonds from 

operators and parent guarantors as 

follows: 

(A) For the Administrator to accept an 

operator’s self-bond, the total amount of the 

outstanding and proposed self-bonds of the 

operator shall not exceed 25 percent of the 

operator’s tangible net worth in the United 

States, or 

(B) For the Administrator to accept a 

parent corporate guarantee, the total amount 

of the parent corporation guarantor’s present 

and proposed self-bonds and guaranteed selfbonds shall not exceed 25 percent of the 

parent corporate guarantor’s tangible net 

worth in the United States. * * * 

Wyoming proposed to amend these 

provisions so as to provide operators 

and parent guarantors greater selfbonding capability if the operator or 

parent guarantor meets more stringent 

financial standards. Wyoming proposed 

to amend its regulations at Chapter 11, 

Section 2(a) (xii) (A) and (B) by adding 

language as follows: 

(A) For the Administrator to accept an 

operator’s self-bond, the total amount of the 

outstanding and proposed self-bonds of the 

operator shall not exceed 25 percent of the 

operator’s tangible net worth in the United 

States, however the Administrator may allow 

for an increase in the self-bond amount to 35 

percent of tangible net worth for operators 

that have a ratio of total liabilities to net 

worth of 1.5 or less and a ratio of current 

assets to current liabilities of 1.7 or greater, 

or 

(B) For the Administrator to accept a 

parent corporate guarantee, the total amount 

of the parent corporation guarantor’s present 

and proposed self-bonds and guaranteed selfbonds shall not exceed 25 percent of the 

parent corporate guarantor’s tangible net 

worth in the United States, however the 

Administrator may allow for an increase in 

the self-bond amount to 30 percent of 

tangible net worth for operators that have a 

ratio of total liabilities to net worth of 1.5 or 

less and a ratio of current assets to current 

liabilities of 1.7 or greater, or 

Thus, under Wyoming’s proposed 

amendment, operators and parent 

guarantors would be allowed to selfbond up to 35% and 30%, respectively, 

of their tangible net worth if they have 

both a ratio of total liabilities to net 

worth of 1.5 or less and a ratio of 

current assets to current liabilities of 1.7 

or greater. The proposed ratios are 

intended to represent an increase in 

financial stability over the current 

ratios. 

To approve Wyoming’s proposal, 

OSM must base its decision on the 

information contained in the State 

submission of the amendment. The 

record needs to contain sufficient 

information and data to support the 

conclusion that the State’s proposal is as 

effective in meeting the requirements of 

the Act as are the Federal regulations. 

OSM can assist the States with 

compilation of information and data, 

but it remains the responsibility of the 

State seeking approval of an alternative 

to establish the necessary record. 

In its ‘‘Statement of Reasons,’’ the 

LQD indicates that the proposed rule 

changes would strengthen the existing 

regulatory framework and permit a 

company that can demonstrate greater 

financial strength than is required by 

the existing rules to be granted 

additional self-bonding capacity. In 

order to measure the additional 

financial strength of a company with the 

proposed alternative credit ratios, the 

LQD relies on recent studies completed 

by Standard and Poor’s and Moody’s 

that analyzed credit ratios and credit 

default probabilities by rating 

categories. The LQD maintains the 

studies indicate that tightening the 

Liability to Net Worth Ratio (ratio of 

liabilities to net worth) from 2.5 to 1.5 

is equivalent to a company moving from 

a non-investment grade rating to an 

investment grade rating, and that the 

probability of a credit default is reduced 

by more than half. Although the studies 

do not address the additional liquidity 

demonstrated by a Current Ratio (ratio 

of current assets to current liabilities) of 

1.7 or better, the LQD states that the 

proposed current ratio would add to a 

company’s financial ability to honor its 

immediate commitments. The LQD used 

the rating organization studies to 

compare default rates for companies 

with the existing and proposed 

Liabilities to Net Worth ratios. The LQD 

states that the stronger ratios provide 

more than enough protection to assure 

that the State is taking no more risk than 

it would under the existing rules, and 

that the approximate 40% strengthening 

of the financial ratios (from 2.5 to 1.5 for 

the Liability to Net Worth Ratio and 1.2 

to 1.7 for the Current Ratio) should 

allow for at least a 40% increase in selfbonding capacity (25% to 30% or 35% 

of Net Worth). 

In letters dated March 24 and July 1, 

2008, Wyoming responded to OSM’s 

requests by providing additional 

analysis and including specific 

references to the Standard and Poor’s 

and Moody’s studies as the basis for 

some of the statements in the 

‘‘Statement of Reasons.’’ 

Wyoming states that a 40% reduction 

in the ratio of liabilities to net worth 

equates to a 40% increase in financial 

strength. Under the proposal Wyoming 

states this justifies a 40% increase in 

self bond measured against net worth. 

The Federal self-bonding rules 

establish minimum criteria for allowing 

an applicant for a surface coal mining 

and reclamation operation permit to 

self-bond. 

States are not required to adopt self-bond 

rules, but if States choose to allow selfbonding, these rules establish minimum 

criteria. States choosing to allow self-bonding 

may adopt more detailed rules that reflect the 

financial structures of the local industry, if 

necessary to provide the regulatory authority 

additional protection from risk of forfeiture. 

* * * The self-bonding rules in this 

rulemaking form the benchmark by which 

the States can build their own programs if 

they wish to allow self-bonding of surface 

coal mining operations. If they choose to 

allow self-bonding, States can add their own 

additional relevant criteria. 

See the August 10, 1983 Federal 

Register (48 FR 36418). 

The Federal regulation at 30 CFR 

800.23(d) prohibits the regulatory 


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Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52681 

authority from accepting operator selfbonds or parent corporate guarantees for 

self-bonds unless the total amount of the 

operator’s or parent corporate 

guarantor’s outstanding and proposed 

self-bonds and self-bond guarantees for 

surface coal mining and reclamation 

operations does not exceed 25 percent 

of the applicant’s tangible net worth in 

the United States. Similarly, where a 

non-parent corporation proposes to 

guarantee an operator’s self-bond, the 

total amount of the non-parent corporate 

guarantor’s present and proposed selfbonds and guaranteed self-bonds shall 

not exceed 25 percent of the guarantor’s 

tangible net worth in the United States. 

In establishing the self-bonding rules 

OSM reasoned that— 

Although the requirements of these rules 

are such that only well-established, 

financially solvent business entities will 

qualify for self-bonding, there is always an 

element of risk involved in underwriting the 

obligations of such companies. The 25 

percent restriction provides a financial 

cushion, in the event that a self-bonded 

entity should fail, to allow the regulatory 

authority to attempt to recoup self-bonded 

amounts from assets of the bankrupt entity. 

See the August 10, 1983 Federal 

Register (48 FR 36425). 

Wyoming’s proposal combines and 

links two distinct self-bonding 

requirements: Financial strength 

defined by eligibility criteria and limits 

on allowable self-bond amounts relative 

to a company’s tangible net worth. 

Wyoming attempts to directly equate an 

increase in financial strength (eligibility 

requirements) to an increase in financial 

risk (self-bond limits). As noted above, 

Wyoming states that the approximate 

40% strengthening of the eligibility 

financial ratios (from 2.5 to 1.5 for the 

Liability to Net Worth Ratio and 1.2 to 

1.7 for the Current Ratio) should allow 

for at least a 40% increase in selfbonding capacity (25% to 30% or 35% 

of Net Worth). 

Preamble language cited above makes 

clear that the Federal limit for selfbonds relative to a company’s tangible 

net worth in the United States provides 

a financial cushion, in the event that a 

self-bonded entity should fail, to allow 

the regulatory authority to attempt to 

recoup self-bonded amounts from assets 

of the bankrupt entity. The limits of selfbonding amounts relative to a 

company’s tangible net worth and 

financial strength defined by eligibility 

requirements are independent 

requirements under OSM’s regulations. 

The Federal eligibility requirements at 

30 CFR 800.23(b) are believed to ensure 

adequate financial stability. We agree 

that companies meeting more stringent 

financial standards should be less likely 

to go bankrupt. We do not agree with 

Wyoming’s rationale to directly equate 

the percentage increase in financial 

strength required for eligibility to the 

percentage increase in allowable selfbond. There is insufficient basis to 

conclude that a 40% change in the ratio 

that represents financial strength means 

a 40% change in financial strength. 

Furthermore, the record does not 

support a conclusion that a one-to-one 

correlation exists between an increase in 

financial strength ratios for eligibility 

and an increase to self-bond limits. 

Therefore, we cannot find the 

proposal to increase allowable self-bond 

to be no less effective than the Federal 

regulations and we disapprove it. 

B. Revisions to Wyoming’s Rules With 

No Corresponding Federal Statute or 

Regulation 

1. Chapter 11, Section 2(a)(xii)(D) & 

(E), Acceptance of Foreign Corporate 

Guarantees and Informational 

Requirements for Self-Bond Operator 

and Guarantor Applicants That Include 

Foreign Assets in Tangible Net Worth 

Calculations. 

At its own initiative, Wyoming 

proposes to add provisions allowing the 

Administrator to accept self-bond 

guarantees from foreign companies and 

describing informational requirements 

for self-bond operator and guarantor 

applicants that include assets outside 

the United States in their tangible net 

worth determinations. In its ‘‘Statement 

of Reasons,’’ the LQD notes that the 

proposed rules provide additional 

protection to the State if the parent or 

non-parent guarantor is a foreign 

company, and allow those companies to 

rely upon their non-domestic assets in 

measuring net worth. 

Under Wyoming’s proposal, in order 

to use foreign assets in its tangible net 

worth determination, the company must 

provide a legal opinion concerning the 

collectability of the self-bond in a 

foreign country and a separate bond to 

be used in the event the self-bond must 

be collected. The legal opinion and the 

requirement for a separate bond to cover 

the cost of collecting a self-bond for a 

foreign guarantee is deemed necessary 

because of the different legal systems 

that may have to be used to collect the 

bond. It also may be necessary to 

employ a foreign legal corporation to 

pursue the collection in foreign courts. 

The LQD further states that the 

Wyoming Attorney General’s Office will 

review the opinion from the 

international law firm. The State is able 

to monitor the status and valuation of 

the assets used to support the self-bond 

because the operator is required to 

submit an audited financial statement 

that includes such information as set 

forth in Chapter 11, Section 4. In 

addition, the audited financial 

statement must be in accordance with 

generally accepted accounting 

principles adopted by the United States 

Financial Accounting Standards Board. 

Chapter 11, Section 4 also provides the 

LQD with the authority to require 

quarterly reporting if it determines that 

the financial condition of the company 

warrants closer scrutiny. Lastly, Chapter 

11, Section 5(a) allows the 

Administrator to require the operator to 

replace the self-bond if for any reason 

the Administrator determines that the 

self-bond does not provide the 

protection required by the Wyoming 

Department of Environmental Quality 

Act. The rule allows the operator 90 

days to replace the self-bond. 

Our evaluation of Wyoming’s 

proposal to allow tangible net worth 

determinations to include assets in 

foreign countries focused on whether 

the proposal is consistent with the 

Federal requirement at 30 CFR 800.23(d) 

that an applicant’s tangible net worth be 

‘‘in the United States.’’ In adopting the 

Federal self-bonding regulations, OSM 

clarified in the August 10, 1983 

preamble for 30 CFR 800.23(d) that ‘‘all 

self-bonds of the applicant for surface 

coal mining and reclamation operations 

shall be considered and that, to facilitate 

recovery of self-bonded amounts in the 

event of bankruptcy, net worth must be 

net worth in the United States.’’ See 48 

FR 36422, 36425. Our evaluation 

focused on the risks associated with the 

ability to recover foreign self-bonded 

amounts in the event of bankruptcy. 

We notified Wyoming of our concerns 

with their proposal by letter dated May 

26, 2006 (Administrative Record No. 

WY–40–08). Among other things, we 

recommended that Wyoming revise its 

proposed rule language in (I) to require 

that a legal opinion assure that the bond 

is in fact collectable and explain how it 

is to be collected. 

Wyoming responded by letter dated 

June 23, 2006 (Administrative Record 

No. WY–40–09) and submitted 

additional explanatory information 

about its self-bonding rules with respect 

to the inclusion of foreign assets as part 

of a company’s tangible net worth and 

the eligibility of foreign companies to 

self-bond or guarantee a self-bond. 

Wyoming stated that Sections 

2(a)(xii)(D) and (E) are a subset of a 

larger set of financial information 

required as part of the self-bond 

application process, and that the 

Administrator’s approval is conditioned 

on the applicant’s submission of 

additional financial data set forth in 

Sections 2(a)(xii)(A)–(E). Wyoming also 


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maintained that the requirement in 

Section 2(a)(xii)(E)(I) that the legal 

opinion be ‘‘from a firm recognized to 

do business in the country of the firm’s 

international headquarters concerning 

the collectability of a self-bond in the 

foreign country,’’ serves to verify that 

the self-bond can in fact be collected 

and will also explain how it is to be 

collected. 

Wyoming went on to state that, in 

order to form an opinion on either of 

these issues, one must first conclude 

that the bond is collectable and that an 

explanation of the methods used to 

collect the bond would be implicit in 

any legal opinion estimating the cost of 

recovering the self-bond. Wyoming 

stated that the legal opinion is a tool 

that allows the Administrator to make 

an informed decision on whether to 

accept or reject the self-bond and 

indicated that the Administrator would 

be likely to reject a self-bond 

application if the legal opinion stated 

that it would be difficult and costly to 

collect the self-bond. Wyoming 

explained that, in that event, the 

Administrator could require additional 

financial assurances to limit the risk of 

collecting the bond amount or 

recovering foreign assets. 

As a result, Wyoming asserted, the 

rules as submitted already require that 

the legal opinion discuss whether a selfbond is in fact collectable, as well as the 

methods of collection. Next, Wyoming 

explained that the availability of 

methods for collecting assets of nonparent foreign guarantors will be 

discussed as part of the legal opinion 

required by Section 2(a)(xii)(E)(I). After 

the legal opinion and all other relevant 

materials are reviewed, the 

Administrator can make an informed 

decision whether to accept or reject a 

self-bond application. Wyoming also 

stated that, because of the flexibility 

built into the self-bond regulatory 

framework, the Administrator may 

request additional guarantees that the 

self-bond or foreign assets are in fact 

collectible. 

Insofar as collecting assets of nonparent foreign guarantors who may not 

have any assets in the U.S., Wyoming 

states that this situation will be avoided 

because financial data is required of all 

guarantors and Section 3(b)(ii) requires 

non-parent guarantors to submit an 

indemnity agreement along with an 

affidavit that certifies that such an 

agreement is valid under all applicable 

Federal and State laws. Lastly, 

Wyoming refers to Section 2(a)(xii)(C) 

which requires that ‘‘the total amount of 

the non-parent corporate guarantor’s 

present and proposed self-bonds and 

guaranteed self-bonds shall not exceed 

25 percent of the non-parent corporate 

guarantor’s tangible net worth in the 

United States.’’ 

For several reasons, we find that 

Wyoming’s proposal does not 

satisfactorily address concerns relating 

to the inherent risks associated with 

collecting non-domestic assets and 

recovering self-bonded amounts in the 

event of bankruptcy of a company 

without assets in the United States 

sufficient to cover reclamation costs. A 

sample legal opinion supplied by 

industry in support of Wyoming’s 

proposal demonstrates that, in the event 

of an operator or parent guarantor 

bankruptcy, the collection of nondomestic assets could be prohibitively 

difficult and costly. The opinion’s 

identification of an extremely broad 

range of potential bond recovery costs, 

based upon numerous assumptions and 

subject to many qualifications, resulted 

in the opinion not providing any solid 

assurance of recoverability of foreign 

assets. 

Proposed subsection (E)(I) does not 

expressly require that the legal opinion 

confirm that the bond would be 

collectible, nor does it require a detailed 

explanation of the requirements and 

procedures to file and enforce a selfbond guarantee based on foreign assets. 

There is no requirement that the legal 

opinion verify the foreign company’s 

and/or its signatory’s authorities to 

guarantee reclamation obligations or 

indemnify United States governmental 

entities. Nor is the legal opinion 

required to explain applicable 

principles of corporate and bankruptcy 

law in the relevant country and its 

likely effects on the recoverability of 

reclamation bonds and guarantees. It is 

unclear how the requirement that the 

legal opinion be from ‘‘a firm recognized 

to do business in the country of the 

firm’s international headquarters’’ 

provides any additional assurance of 

recoverability of foreign assets which 

could potentially be located anywhere 

in the world. 

Many Wyoming mines include 

Federal land and the United States must 

be named as a beneficiary, co-payee, coobligee, etc., on bonds for such mines. 

It is therefore likely that OSM would 

incur substantial costs in the event of a 

forfeiture of a self-bond of a company 

lacking assets in the United States 

sufficient to cover reclamation costs. 

OSM finds that the Wyoming proposal 

does not provide sufficient assurance of 

performance of reclamation 

responsibilities for Federal lands and is 

inconsistent with the Federal 

regulations at 30 CFR 800.23(d). 

Wyoming referred OSM to the 

Administrator’s discretion to deny 

applications for self-bond guarantees 

from foreign corporations. Wyoming 

notes that if an application to self-bond 

is rejected on the basis of the legal 

opinion, the Administrator can request 

additional financial assurances which 

limit the risk of collecting the bond 

amount or recovering foreign assets. 

Chapter 11, Section 3(a)(i) provides that 

the Administrator’s decisions to 

approve or reject a self-bond application 

must meet the demonstrations required 

by W.S. 35–11–417(d). The referenced 

statutory provision allows the 

Administrator to accept the bond of the 

operator without separate surety when 

the operator ‘‘demonstrates to the 

satisfaction of the director 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 this amount.’’ Based on this 

general language, we remain unclear as 

to the specific circumstances under 

which the Administrator may exercise 

his or her discretion to reject a self-bond 

application. Similarly, we do not fully 

understand what Wyoming means when 

it refers to requesting ‘‘additional 

financial assurances’’ from foreign 

corporations in the event that a selfbonding application is rejected by the 

Administrator. 

Moreover, according to Wyoming’s 

June 23, 2006 response letter, self-bond 

guarantees by non-parent foreign 

corporations are subject to the 

limitations of subsection (C) of Section 

2(a)(xii). That subsection currently 

restricts self-bonds to 25% of the nonparent corporate guarantor’s tangible net 

worth ‘‘in the United States.’’ While 

retaining the applicability of that 

subsection to non-parent foreign 

corporations would not cause the State 

program to be less effective than the 

Federal rules, applying that provision 

would appear to effectively negate 

Wyoming’s purpose in elsewhere 

proposing to amend its rules to allow 

the use of a non-parent guarantor’s 

foreign assets in computing tangible net 

worth. 

We also note that the meaning and 

applicability of proposed Chapter 11, 

Section 2(a)(xii)(D) are unclear. 

Subsection (D) states that ‘‘If the 

operator chooses to include assets 

outside the United States in their 

tangible net worth, the Administrator 

shall require the information required 

under subsection (E).’’ (Emphasis 

added). Given that subsection (E) 

identifies information required of a 

foreign corporate guarantor, not the 

operator, the requirements of subsection 

(D) are unclear. 


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Based on the discussion above, we 

find that Wyoming’s proposed 

regulations at Chapter 11, Section 

2(a)(xii)(D) and (E) are less effective 

than the Federal regulations at 30 CFR 

800.23(d) the Secretary’s regulations in 

meeting the requirements of SMCRA. 

The uncertainties and risks associated 

with cost recovery and enforcement of 

self-bonds of companies without 

sufficient assets in the United States to 

cover costs of reclamation are too great 

for us to approve their use in the 

absence of a Federal rule change. 

Accordingly, we are not approving 

Wyoming’s newly-created rules at 

Chapter 11, Section 2(a)(xii)(D) and (E), 

concerning foreign corporation 

guarantors. 

IV. Summary and Disposition of 

Comments 

Public Comments 

We asked for public comments on the 

amendment (Administrative Record 

Nos. WY–40–3 and WY–40–10). Four 

comments were received; three from 

industry groups and one from a Federal 

Agency, all in support of Wyoming’s 

proposed rule changes. 

Industry Group Comments 

On April 21, 2006, the Wyoming 

Mining Association (WMA) commented 

on the proposed amendment 

(Administrative Record No. WY–40–4). 

The WMA provided comments in 

response to concerns that OSM had 

previously raised in connection with 

Wyoming’s proposed rule changes on 

self-bonding. Specifically, with respect 

to raising the tangible net worth limits, 

the WMA provided an analysis in 

support of the increase and commented 

that the proposed rule change addresses 

the severe shortage of surety bonds and 

the ‘‘one size fits all’’ 25 percent limit 

by allowing more of the exposure to be 

shifted to Wyoming without increasing 

the risk undertaken by the State. The 

WMA further noted that, by providing 

the higher bonding amount, Wyoming is 

creating an incentive for companies to 

strengthen their balance sheets. 

Regarding the issue of monitoring the 

status and valuation of foreign company 

assets as the base for self-bonds, the 

WMA commented that the current 

policy for foreign parent guarantors 

would apply to foreign company assets 

used directly for self-bonds. 

Specifically, as a stipulation to 

approved use of foreign assets for selfbonding purposes, Wyoming requires 

interim reporting on the continued 

qualification for self-bonding based on 

the extent of financial strength and 

bonding levels. The WMA goes on to 

state that the reporting information 

includes data regarding the status and 

categorization of foreign assets. With 

respect to the reporting requirements 

and standards that would apply to 

foreign companies, the WMA noted that 

Wyoming’s rules already provide the 

Administrator with the authority to 

require frequent status reporting if the 

financial condition of the [foreign] 

company warrants closer scrutiny, and 

that reporting standards and 

requirements are case-dependent, 

corresponding to the demonstrated 

financial strength of a company. The 

WMA further commented that the 

valuation of foreign assets will be 

determined through audited financial 

statements which shall be in English 

and shall be prepared with generally 

accepted accounting principles, as 

adopted by the United States Financial 

Accounting Standards Board. Those 

methods will provide the valuation of 

assets equivalent to evaluation of U.S. 

based assets. The WMA responded to 

OSM’s concerns related to monitoring or 

requiring reports of legal changes 

affecting the status and liquidity of 

foreign assets by stating that Wyoming 

will require interim status reporting on 

the continued qualification for selfbonding, which will include 

information regarding the status and 

form of foreign assets. In response to 

OSM’s concerns related to conducting 

an independent legal review prior to 

acceptance of a foreign parent or nonparent guarantee to verify that the legal 

opinion provided by the international 

firm concerning the enforceability of an 

indemnity agreement is accurate, the 

WMA commented that Wyoming 

utilizes the services of the State 

Attorney General’s Office to review the 

legal opinion, which serves as a second 

independent legal review. The WMA 

stated that Wyoming’s current 

regulations at Chapter 11, Section 5(a), 

allowing for the substitution of an 

alternate bond within 90 days if an 

operator no longer qualifies under the 

self-bonding program, provides a time 

frame within which a company must 

replace self-bonds. Lastly, the WMA 

stated that Wyoming’s current policy 

that conditions approval of self-bonding 

using foreign assets on interim status 

reporting of those assets provides a 

mechanism for identifying the potential 

for such assets being nationalized or 

becoming illiquid as a result of a legal 

change in the country where they are 

located. The WMA urged OSM to 

approve the changes as consistent with 

and no less effective than SMCRA and 

the Federal regulations. 

The National Mining Association 

(NMA) commented in a May 17, 2006, 

e-mail (Administrative Record No. WY– 

40–6). The NMA stated that it adopts 

the April 21, 2006, comments filed by 

the Wyoming Mining Association. The 

NMA further noted that it also believes 

it is important for OSM to consider that, 

due to factors unrelated to any loss 

experience for reclamation bonds, 

surety capacity for reclamation 

obligations has diminished substantially 

as compared to five or six years ago. As 

a result, the NMA asserted that carefully 

crafted revisions to State programs 

which make alternatives to surety more 

readily available are both a necessary 

and responsible response to this 

fundamental change in the surety 

market. Lastly, the NMA commented 

that Wyoming coal mines are owned 

and operated by well-capitalized 

companies which take their stewardship 

responsibilities seriously, and that the 

revisions to the Wyoming State program 

ensure that the objectives of the 

performance bonding requirements in 

Section 509 of SMCRA will be met. The 

NMA also urged OSM to approve the 

revisions as being no less effective than 

SMCRA and its implementing rules. 

On August 14, 2006, Rio Tinto Energy 

America (RTEA) provided comments in 

support of Wyoming’s June 23, 2006, 

response to our May 26, 2006, issue 

letter on the proposed amendment 

(Administrative Record No. WY–40–11). 

RTEA owns and operates three mining 

operations in the Powder River Basin in 

Wyoming. RTEA commented that 

Wyoming’s June 23, 2006, letter notes 

that the proposed rule holds additional 

qualifying requirements when foreign 

assets are utilized for self bond 

guarantees. RTEA further commented 

that the additional requirements, which 

provide a strong base to assess risk 

acceptability for foreign assets, include: 

A legal opinion providing detailed 

information on the self-bond 

collectability; a legal opinion on 

projected costs to collect upon a selfbond in the foreign venue; a separate 

surety bond to address the projected 

costs to collect upon the self-bond; 

additional demonstrations of financial 

strength; and any other information 

determined necessary by the 

Administrator for evaluation. RTEA also 

noted that the required legal opinions 

are to be reviewed by both the Wyoming 

Attorney General’s Office and the 

Administrator. RTEA goes on to state 

that these measures are more stringent 

and require greater information and 

demonstrations than do those applying 

to domestic company self-bonds or 

guarantees to self-bond. Next, RTEA 


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commented that the final determination 

to accept or deny such applications 

remains at the discretion of the 

Administrator, providing measures for 

additional assurances of financial 

strength and low risk if necessary. 

Lastly, RTEA stated its agreement with 

Wyoming’s determinations that the 

amendment, as submitted, contains the 

flexibility to require any necessary 

assurances from the applicant in order 

to ensure that the State is not taking an 

undue risk when accepting a self-bond 

or guarantee. RTEA commented that 

Wyoming’s explanation provides a 

strong basis for OSM to approve the 

proposed amendment, and it urged 

OSM to approve the proposed 

amendment without further revision. 

With respect to Wyoming’s proposal 

to raise the tangible net worth limits and 

provide operators and parent guarantors 

greater self-bonding capability if they 

meet the more stringent ratios of total 

liabilities to net worth and current 

assets to current liabilities, we refer the 

commenters to Finding No. III.A.3. for a 

detailed explanation as to why the 

proposed revisions to Chapter 11, 

Section 2(a)(xii)(A) & (B) are not being 

approved. 

In response to comments regarding 

Wyoming’s proposal concerning 

acceptance of foreign corporate 

guarantees and informational 

requirements for self-bond operator and 

guarantor applicants that include 

foreign assets in tangible net worth 

calculations, we refer the commenters to 

Finding III.B.1. for a detailed 

explanation as to why we are not 

approving Wyoming’s newly-created 

rules at Chapter 11, Section 2(a)(xii)(D) 

and (E), respectively. 

Federal Agency Comments 

Under 30 CFR 732.17(h)(11)(i) and 

section 503(b) of SMCRA, we requested 

comments on the amendment from 

various Federal agencies with an actual 

or potential interest in the Wyoming 

program (Administrative Record No. 

WY–40–3). We received comments from 

one Federal Agency. 

The Bureau of Land Management 

(BLM) commented in an April 28, 2006, 

e-mail (Administrative Record No. WY– 

40–5). The BLM stated that the revised 

Wyoming proposal addresses its 

programs, and it agrees with the 

changes. 

Environmental Protection Agency (EPA) 

Concurrence and Comments 

Under 30 CFR 732.17(h)(11)(i) and 

(ii), we are required to get 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 Wyoming proposed to 

make in this amendment pertains to air 

or water quality standards. Therefore, 

we did not ask EPA to concur on the 

amendment. 

State Historic 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 March 24, 2006, we 

requested comments on Wyoming’s 

amendment (Administrative Record No. 

WY–40–3), but neither responded to our 

request. 

V. OSM’s Decision 

Based on the above findings, we 

approve, with the following exceptions, 

Wyoming’s March 7, 2006 amendment. 

As discussed in Finding No. III.A.1, 

we are deferring our decision on 

Wyoming’s proposed rule change at 

Chapter 1, Section 2(k) that expands the 

definition of ‘‘bond’’ to allow for 

acceptance of alternative financial 

assurances which provide comparable 

levels of assurance for reclamation 

performance, and also requires OSM 

approval of those assurances. 

We do not approve the following 

provisions. 

As discussed in Finding No. III.A.3, 

we are not approving Wyoming’s 

proposed rule changes at Chapter 11, 

Section 2(a)(xii)(A) and (B), 

respectively, concerning acceptance of a 

larger percentage of self-bonds relative 

to tangible net worth for operators and 

parent corporate guarantors above those 

currently permitted by the Federal rules. 

As discussed in Finding No. III.B.1, 

we are not approving Wyoming’s newlycreated rules at Chapter 11, Section 

2(a)(xii)(D) and (E), concerning 

acceptance of foreign corporate 

guarantees and informational 

requirements for self-bond operator and 

guarantor applicants that include 

foreign assets in tangible net worth 

calculations. 

We approve the rules as proposed by 

Wyoming with the provision that they 

be fully promulgated in identical form 

to the rules submitted to and reviewed 

by OSM and the public. 

To implement this decision, we are 

amending the Federal regulations at 30 

CFR Part 950, which codify decisions 

concerning the Wyoming program. We 

find that good cause exists under 5 

U.S.C. 553(d)(3) to make this final rule 

effective immediately. Section 503(a) of 

SMCRA requires that the State’s 

program demonstrates that the State has 

the capability of carrying out the 

provisions of the Act and meeting its 

purposes. Making this regulation 

effective immediately will expedite that 

process. SMCRA requires consistency of 

State and Federal standards. 

Effect of OSM’s Decision 

Section 503 of SMCRA provides that 

a State may not exercise jurisdiction 

under SMCRA unless the State program 

is approved by the Secretary. Similarly, 

30 CFR 732.17(a) requires that any 

change of an approved State program be 

submitted to OSM for review as a 

program amendment. The Federal 

regulations at 30 CFR 732.17(g) prohibit 

any changes to approved State programs 

that are not approved by OSM. In the 

oversight of the Wyoming program, we 

will recognize only the statutes, 

regulations and other materials we have 

approved, together with any consistent 

implementing policies, directives and 

other materials. We will require 

Wyoming to enforce only approved 

provisions. 

VI. Procedural Determinations 

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 12866—Regulatory 

Planning and Review 

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—Civil Justice 

Reform 

The Department of the Interior has 

conducted the reviews required by 

section 3 of Executive Order 12988 and 

has determined that this rule meets the 

applicable standards of subsections (a) 

and (b) of that section. However, these 

standards are not applicable to the 

actual language of State regulatory 

programs and program amendments 

because each program is drafted and 

promulgated by a specific State, not by 

OSM. Under sections 503 and 505 of 

SMCRA (30 U.S.C. 1253 and 1255) and 

the Federal regulations at 30 CFR 

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

decisions on proposed State regulatory 

programs and program amendments 

submitted by the States must be based 

solely on a determination of whether the 

submittal is consistent with SMCRA and 

its implementing Federal regulations 

and whether the other requirements of 


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Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52685 

30 CFR Parts 730, 731, and 732 have 

been met. 

Executive Order 13132—Federalism 

This rule does not have Federalism 

implications. SMCRA delineates the 

roles of the Federal and State 

governments with regard to the 

regulation of surface coal mining and 

reclamation operations. One of the 

purposes of SMCRA is to ‘‘establish a 

nationwide program to protect society 

and the environment from the adverse 

effects of surface coal mining 

operations.’’ Section 503(a)(1) of 

SMCRA requires that State laws 

regulating surface coal mining and 

reclamation operations be ‘‘in 

accordance with’’ the requirements of 

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

that State programs contain rules and 

regulations ‘‘consistent with’’ 

regulations issued by the Secretary 

pursuant to SMCRA. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, we have evaluated the potential 

effects of this rule on Federally 

recognized Indian Tribes and have 

determined that the rule does not have 

substantial direct effects on one or more 

Indian Tribes, on the relationship 

between the Federal government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian Tribes. 

The rule does not involve or affect 

Indian Tribes in any way. 

Executive Order 13211—Regulations 

That Significantly Affect the Supply, 

Distribution, or Use of Energy 

On May 18, 2001, the President issued 

Executive Order 13211 which requires 

agencies to prepare a Statement of 

Energy Effects for a rule that is (1) 

considered significant under Executive 

Order 12866, and (2) likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Because 

this rule is exempt from review under 

Executive Order 12866 and is not 

expected to have a significant adverse 

effect on the supply, distribution, or use 

of energy, a Statement of Energy Effects 

is not required. 

National Environmental Policy Act 

This rule does not require an 

environmental impact statement 

because section 702(d) of SMCRA (30 

CFR 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) et seq.). 

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. 

3501 et seq.). 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), of 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 an 

unfunded Mandate on State, local, or 

tribal governments or the private sector 

of $100 million or more in any given 

year. This determination is based upon 

the 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 did not impose an unfunded 

mandate. 

List of Subjects in 30 CFR Part 950 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: September 18, 2009. 

Allen D. Klein, 

Director, Western Region. 

■ For the reasons set out in the 

preamble, 30 CFR part 950 is amended 

as set forth below: 

PART 950—WYOMING 

■ 1. The authority citation for part 950 

continues to read as follows: 

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

■ 2. Section 950.15 is amended in the 

table by adding a new entry in 

chronological order by ‘‘Date of Final 

Publication’’ to read as follows: 

§ 950.15 Approval of Wyoming regulatory 

program amendments. 

* * * * * 

Original amendment 

submission date 

Date of final 

publication Citation/description 

* * * * * * * 

March 7, 2006 .............. October 14, 2009 ........ Chapter 11, Section 2(a)(vii)(A). 

[FR Doc. E9–24682 Filed 10–13–09; 8:45 am] 

BILLING CODE 4310–05–P 


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