53972 Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Proposed Rules 

(3) Time period and scope determined 

by CBP; projection when sampling 

employed. In conducting an audit under 

paragraph (d)(1) of this section or 

authorizing an audited person’s selftesting as described in paragraph (d)(2) 

of this section, CBP will have the sole 

authority to determine the time period 

and scope of the audit. An audit 

employing statistical sampling will be 

limited to the transactions that the CBP 

auditors actually examine (i.e., review) 

during the audit. The results of the 

sample examination, with respect to 

properly identified overpayments and 

over-declarations and properly 

identified underpayments and underdeclarations, will be projected over the 

universe of transactions to determine 

the total overpayments and overdeclarations that are eligible for 

offsetting and to determine the total loss 

of duties, taxes, and fees. 

(4) Same acts, statements, omissions, 

or entries not required. Offsetting may 

be permitted where the overpayments or 

over-declarations were not made by the 

same acts, statements, or omissions that 

caused the underpayments or underdeclarations, and is not limited to the 

same entries that evidence the 

underpayments or under-declarations, 

provided that they are within the time 

period and scope of the audit as 

established by CBP and as described in 

paragraph (d)(4) of this section. 

(5) Limitations. Offsetting will not be 

allowed with respect to specific 

overpayments or over-declarations made 

for the purpose of violating any 

provision of law, including laws other 

than customs laws. Offsetting will not 

be allowed with respect to 

overpayments or over-declarations 

resulting from a failure to timely claim 

or establish a duty allowance or 

preference. Offsetting will be disallowed 

entirely where CBP determines that any 

underpayments or under-declarations 

identified for offsetting purposes were 

made knowingly and intentionally. 

(6) Audit report. Where overpayments 

or over-declarations have been 

identified in accordance with paragraph 

(d)(1) of this section, the audit report 

will state whether they have been made 

within the time period and scope of the 

audit. 

(7) Disallowance determinations 

referred to FP&F. Any determination 

that offsets will be disallowed where 

overpayments/over-declarations were 

made for the purpose of violating any 

law, or where underpayments or underdeclarations were made knowingly and 

intentionally, will be made by the 

appropriate Fines, Penalties, and 

Forfeitures (FP&F) office to which the 

issue was referred. CBP will notify the 

audited person of a determination 

whether to allow offsetting in whole or 

in part. The FP&F office will issue a 

notice of penalty and/or demand for lost 

duties, taxes, and fees where it 

determines that such action is 

warranted. Where the FP&F office issues 

a notice of penalty and/or demand, the 

audited person may file a petition under 

19 CFR part 171. 

(8) Refunds limited. A net 

overpayment of duties, taxes, and fees 

will not be paid as a refund unless the 

circumstances of the overpayments meet 

the requirements of 19 U.S.C. 1520 or 

the requirements of 19 U.S.C. 1514(a) 

pertaining to clerical error, mistake of 

fact, or other inadvertence in any entry, 

liquidation, or reliquidation. In that 

event, the audited person must file a 

claim under the applicable statute and 

regulations at the appropriate CBP port 

office. Any such overpayment(s) will 

not be included in the audit’s offsetting 

calculation. 

(e) Sampling not evidence of 

reasonable care. The fact that entries 

were previously within the time period 

and scope of an audit conducted by CBP 

in which sampling was employed, in 

any circumstances described in this 

section, is not evidence of reasonable 

care by a violator in any subsequent 

action involving such entries. 

(f) Exception to procedures. 

Paragraphs (a)(5), (a)(6), (b), (d)(7), and 

(d)(8) of this section do not apply once 

CBP and/or ICE commences an 

investigation with respect to the issue(s) 

involved. 

Jayson P. Ahern, 

Acting Commissioner, Customs and Border 

Protection. 

Approved: October 15, 2009. 

Timothy E. Skud, 

Deputy Assistant Secretary of the Treasury. 

[FR Doc. E9–25222 Filed 10–20–09; 8:45 am] 

BILLING CODE 9111–14–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 948 

[WV–116–FOR; OSM–2009–0008] 

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 on proposed amendment. 

SUMMARY: We are announcing receipt of 

a proposed amendment to the West 

Virginia regulatory program (the West 

Virginia program) under the Surface 

Mining Control and Reclamation Act of 

1977 (SMCRA or the Act) that includes 

both statutory and regulatory revisions. 

West Virginia submitted a proposed 

amendment authorized by Committee 

Substitute for Senate Bill 153 to revise 

the West Virginia Code of State 

Regulations (CSR) concerning the 

continued oversight by the Secretary of 

‘‘approved persons’’ who prepare, sign, 

or certify mining permit applications 

and related materials; regarding 

incidental boundary revisions (IBR) to 

existing permits, by clarifying that 

certain types of collateral activities are 

part of the primary mining operations 

and therefore subject to the same 

acreage limitations, while providing 

more relevant and exacting criteria for 

the Secretary to consider in evaluating 

an application for revision; deleting the 

bonding matrix forms; changing term 

‘‘Bio-oil’’ to ‘‘Bio fuel’’; and clarifying 

standards in subsection 9.3.f that 

pertain to areas developed for hayland 

or pasture use. West Virginia submitted 

proposed changes as contained in 

Senate Bill 436 which amends WV Code 

22–3–8 by changing references 

regarding ‘‘the commissioner of the 

Bureau of Employment Programs’’ and 

‘‘the executive director of the workers’ 

compensation commissioner’’ which are 

considered non-substantive. 

West Virginia also submitted 

proposed changes as contained in 

Committee Substitute for Senate Bill 

600 regarding the Special Reclamation 

Fund. This bill amends the State’s 

alternative bonding requirements by 

eliminating the 7 cents per ton 

additional tax and increasing and 

extending the special reclamation tax 

from 7.4 to 14.4 cents per ton of clean 

coal mined. It also requires the special 

reclamation tax to be reviewed 

biannually by the Legislature. This 

amendment (WV–115–FOR) was 

announced earlier in the July 22, 2009, 

Federal Register (74 FR 36113–36116) 

as an interim rule and approved on a 

temporary basis. 

West Virginia also submitted 

proposed changes as contained in 

Senate Bill 1011 which amends the WV 

Code by requiring surface mine 

reclamation plans to comport with 

approved master land use plans and 

authorizing surface mine reclamation 

plans to contain alternative postmining 

land uses. Senate Bill 1011 was passed 

by the Legislature on June 2, 2009, 

during the 1st extraordinary 2009 

session, and approved by the Governor 

on June 17, 2009. 


pwalker on DSK8KYBLC1PROD with PROPOSALS
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DATES: We will accept written 

comments on this amendment until 4 

p.m. (local time), on November 20, 

2009. If requested, we will hold a public 

hearing on the amendment on 

November 16, 2009. We will accept 

requests to speak at a hearing until 4 

p.m. (local time), on November 5, 2009. 

ADDRESSES: You may submit comments 

by any of the following two methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. The proposed rule 

has been assigned Docket ID OSM– 

2009–0008. If you would like to submit 

comments through the Federal 

eRulemaking Portal, go to http:// 

www.regulations.gov. 

• Mail/Hand Delivery: Mr. Roger W. 

Calhoun, Director, Charleston Field 

Office, Office of Surface Mining 

Reclamation and Enforcement, 1027 

Virginia Street, East, Charleston, West 

Virginia 25301. Please include the rule 

identifier (WV–116–FOR) with your 

written comments. 

Instructions: All submissions received 

must include the agency Docket ID 

(OSM–2009–0008) for this rulemaking. 

For detailed instructions on 

submitting comments and additional 

information on the rulemaking process, 

see the ‘‘Public Comment Procedures’’ 

in the SUPPLEMENTARY INFORMATION

section of this document. You may also 

request to speak at a public hearing by 

contacting the individual listed under 

FOR FURTHER INFORMATION CONTACT. 

Docket: The proposed rule and any 

comments that are submitted may be 

viewed over the Internet at http:// 

www.regulations.gov. Look for Docket 

ID OSM–2009–0008. In addition, you 

may review copies of the West Virginia 

program, this amendment, a listing of 

any scheduled public hearings, and all 

written comments received in response 

to this document at the addresses listed 

below during normal business hours, 

Monday through Friday, excluding 

holidays. You may also receive one free 

copy of this amendment by contacting 

OSM’s Charleston Field Office listed 

below: 

Mr. Roger W. Calhoun, Director, 

Charleston Field Office, Office of 

Surface Mining Reclamation and 

Enforcement, 1027 Virginia Street, 

East, Charleston, West Virginia 25301, 

Telephone: (304) 347–7158. E-mail: 

chfo@osmre.gov. 

West Virginia Department of 

Environmental Protection, 601 57th 

Street, SE., Charleston, WV 25304, 

Telephone: (304) 926–0490. 

In addition, you may review a copy of 

the amendment during regular 

business hours at the following 

locations: 

Office of Surface Mining Reclamation 

and Enforcement, Morgantown Area 

Office, 604 Cheat Road, Suite 150, 

Morgantown, West Virginia 26508, 

Telephone: (304) 291–4004 (By 

Appointment Only). 

Office of Surface Mining Reclamation 

and Enforcement, Beckley Area 

Office, 313 Harper Park Drive, Suite 3, 

Beckley, West Virginia 25801, 

Telephone: (304) 255–5265. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Roger W. Calhoun, Director, Charleston 

Field Office, Telephone: (304) 347– 

7158. E-mail: chfo@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the West Virginia Program 

II. Description of the Proposed Amendment 

III. Public Comment Procedures 

IV. Procedural Determinations 

I. Background on the West Virginia 

Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its program 

includes, among other things, ‘‘* * * a 

State law which provides for the 

regulation of surface coal mining and 

reclamation operations in accordance 

with the requirements of the Act * * *; 

and rules and regulations consistent 

with regulations issued by the Secretary 

pursuant to the Act.’’ See 30 U.S.C. 

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

criteria, the Secretary of the Interior 

conditionally approved the West 

Virginia program on January 21, 1981. 

You can find background information 

on the West Virginia program, including 

the Secretary’s findings, the disposition 

of comments, and conditions of 

approval of the West Virginia program 

in the January 21, 1981, Federal 

Register (46 FR 5915). You can also find 

later actions concerning West Virginia’s 

program and program amendments at 30 

CFR 948.10, 948.12, 948.13, 948.15, and 

948.16. 

II. Description of the Proposed 

Amendment 

By letter dated May 11, 2009 

(Administrative Record Number WV– 

1522), the West Virginia Department of 

Environmental Protection (WVDEP) 

submitted an amendment to its 

permanent regulatory program under 

SMCRA (30 U.S.C. 1201 et seq.) and a 

copy of Committee Substitute for Senate 

Bill 153. Committee Substitute for 

Senate Bill 153 modified the West 

Virginia Code of State Regulations (CSR) 

concerning the continued oversight of 

‘‘approved-persons’’ who prepare, sign, 

or certify mining permit applications 

and related materials. This bill also 

proposes to modify incidental boundary 

revision (IBR) requirements for existing 

permits by clarifying that certain types 

of collateral activities are part of the 

primary mining operations and 

therefore subject to the same acreage 

limitations, while providing more 

relevant and exacting criteria for the 

Secretary to consider in evaluating an 

application for revision; deleting the 

bonding matrix forms; changing the 

term from ‘‘bio-oil’’ to ‘‘bio-fuel’’; and 

clarifying standards for hayland and 

pasture use. The changes regarding the 

term ‘‘Bio-oil’’ to ‘‘Bio-fuel’’ in the 

program amendments are nonsubstantive in nature. 

Committee Substitute for Senate Bill 

153 authorized revisions to the State’s 

Surface Mining Reclamation 

Regulations at 38 CSR 2. Committee 

Substitute for Senate Bill 153 was 

adopted by the Legislature on April 8, 

2009, and signed into law by the 

Governor on April 30, 2009. West 

Virginia Code at paragraph 64–3–1 (e) 

authorized WVDEP to promulgate the 

revisions to its rules as legislative rules. 

By letter date May 22, 2009 

(Administrative Record Number WV– 

1521), the WVDEP submitted copies of 

Senate Bill 436 and Committee 

Substitute for Senate Bill 600. Senate 

Bill 436 was adopted by the West 

Virginia Legislature on April 3, 2009, 

and it was approved by the Governor on 

April 11, 2009. Committee Substitute for 

Senate Bill 600, which authorized 

changes to the State’s alternative 

bonding system, was passed by the 

Legislature on April 10, 2009, and it was 

approved by the Governor on May 4, 

2009, with an effective date of July 1, 

2009. 

Senate Bill 436 amends WV Code 22– 

3–8 by changing references to ‘‘the 

commissioner of the Bureau of 

Employment Programs’’ to ‘‘executive 

director of the Workforce West Virginia’’ 

and ‘‘the executive director of the 

workers’ compensation commissioner’’ 

to ‘‘Insurance Commissioner.’’ The 

revisions authorized by Senate Bill 436 

are considered non-substantive changes 

by the State, and it requests that they 

not be included in the amendment. 

Given the nature of the changes, OSM 

concurs with the State’s assessment and 

finds them to be essentially nonsubstantive changes. Therefore, we are 

not soliciting comments on these 

revisions. However, though perhaps 

non-substantive, the revisions proposed 

would amend a statutory provision of 

the State’s approved program. 

Therefore, we will seek comments on 

these revisions; if, after the comment 


pwalker on DSK8KYBLC1PROD with PROPOSALS
53974 Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Proposed Rules 

period, we determine that the changes 

are indeed non-substantive, we will 

approve them without specific findings. 

Committee Substitute for Senate Bill 

600 amended Section 22–3–11 of the 

West Virginia Surface Mining Control 

and Reclamation Act (WVSCMRA). As 

stated in the State’s May 22, 2009, letter 

transmitting the amendment, Committee 

Substitute for Senate Bill 600 ‘‘amends 

Chapter 22–3–11 of the Code of West 

Virginia to implement actuarial 

recommendations relating to the 

continuing fiscal viability of the Special 

Reclamation Fund. The legislation 

consolidates what has been known as 

‘‘the 7-and-7.4 tax’’ (the 7.4 [cents] 

portion of which is currently subject to 

annual renewal) into a 14.4 cent[s] tax 

per ton of clean coal mined, reviewable 

every two years by the Legislature’’. 

By letter dated July 6, 2009 

(Administrative Record Number WV 

1523), WVDEP submitted a copy of 

Senate Bill 1011. Senate Bill 1011 

amends the WV Code by requiring 

surface mine reclamation plans to 

comport with approved master land use 

plans and authorizing surface mine 

reclamation plans to contain alternative 

postmining land uses. Senate Bill 1011 

was passed by the Legislature on June 

2, 2009, during the 1st extraordinary 

2009 session, and approved by the 

Governor on June 17, 2009. 

The amendment is intended to 

improve the effectiveness of the West 

Virginia program and to render the West 

Virginia program no less effective than 

the Federal regulations. Throughout this 

proposed amendment, nonsubstantive 

changes from ‘‘Bio-oil’’ to ‘‘Bio-fuel’’ are 

made but not listed in this Proposed 

Rule Notice. 

West Virginia proposes the following 

amendments to its regulations as 

authorized by Committee Substitute for 

Senate Bill 153: 

1. CSR 38–2–3.15. Permit Applications: 

Approved Persons 

This amendment proposes to add 

language regarding persons approved to 

prepare, sign, or certify permit 

applications. 

Subdivision a is amended by adding 

(C) after 13(b)(10) to clarify when an 

approved person has to be a registered 

professional engineer or licensed land 

surveyor. 

Subdivision 3.15.b is amended by 

adding ‘‘and subject to be renewed on 

an annual basis.’’ after writing, ‘‘and’’ is 

deleted and ‘‘Approvals and renewals’’ 

is added before ‘‘shall.’’ 

As amended, subdivision 3.15 reads 

as follows: 

3.15.a. Any person approved by the 

Secretary, unless otherwise provided in the 

Act and this rule, may prepare, sign, or 

certify permit application, maps, plans, and 

design specification or other similar 

materials necessary to complete an 

application; provided, however, that for 

purposes of Sections 9(a)(13) and 13(b)(10)(C) 

of the Act an approved person shall be a 

registered professional engineer or licensed 

land surveyor. 

3.15.b. The Secretary’s approval shall be in 

writing and subject to be renewed on an 

annual basis. Approvals and renewals shall 

be granted on the basis of the following: 

Although there are no specific Federal 

requirements governing approved 

persons, these proposed revisions fall 

under the provisions of 30 CFR 777.11, 

777.13, and 780.14(c) and sections 

507(b)(14) and 515(b)(10)(B)(ii) of 

SMCRA. 

2. CSR 38–2–3.15.b.3 Permit 

Applications: Approved Persons 

This amendment proposes to add a 

new subparagraph, 3.15.b.3, regarding 

obtaining a digital signature approved 

by the Secretary for an approved person 

to prepare, sign, or certify permit 

applications. 

As amended, 3.15.b.3 reads as 

follows: 

3.15.b.3. Any person seeking an approval 

must obtain a digital signature approved by 

the Secretary and maintain the capability of 

submitting documents bearing digital 

signatures to the Secretary. A digital 

signature shall have the same effect when 

affixed to documents submitted to the 

Secretary as a signature affixed by other 

means. 

Although there are no specific Federal 

requirements governing approved 

persons, these proposed revisions fall 

under the provisions of 30 CFR 777.11, 

777.13, and 780.14(c) and sections 

507(b)(14) and 515(b)(10)(B)(ii) of 

SMCRA. 

3. CSR 38–2–3.15.e Permit 

Applications: Disciplinary Action and 

Procedures 

This amendment proposes to add a 

new subdivision, 3.15.e, regarding 

disciplinary action and procedures for 

people approved to prepare, sign, or 

certify permit applications. 

As amended, 3.15.e reads as follows: 

3.15.e. Disciplinary action and Procedures. 

3.15.e.1. The Secretary may: 

3.15.e.1.A. Revoke an approved person 

authorization; 

3.15.e.1.B. Suspend an approved person 

authorization for a period of time, not 

exceeding two years, subject to such 

conditions as the Secretary may specify or 

3.15.e.1.C. Make the continuation of a 

person’s approved person status subject to 

such conditions as the Secretary may specify. 

3.15.e.2. The Secretary may suspend or 

revoke a person’s approved person status, or 

refuse to approve, restore, or renew any 

continuation of a person’s approved person 

status, or impose conditions upon approval, 

restoration, or renewal, or may reprimand 

any approved person who has: 

3.15.e.2.A. Engaged or has caused others to 

engage in fraud or deceit in obtaining or 

renewing his or her approved person status; 

3.15.e.2.B. Been negligent, incompetent or 

committed an act of misconduct as an 

approved person; 

3.15.e.2.C. Failed to comply with any of 

the provisions of Chapter 22 Article 3 of the 

Code of West Virginia or any of the rules 

promulgated thereunder; 

3.15.e.2.D. Been disciplined by a 

professional or occupational licensing body, 

or by any State or Federal agency; 

3.15.e.2.E. Made false statements or signed 

false statements, certificates or affidavits; or 

3.15.e.2.F. Aided or assisted another 

person in violating any provision of Chapter 

22 Article 3 of the Code of West Virginia or 

any of the rules promulgated thereunder; 

Although there are no specific Federal 

requirements governing approved 

persons, these proposed revisions fall 

under the provisions of 30 CFR 777.11, 

777.13, and 780.14(c) and sections 

507(b)(14) and 515(b)(10)(B)(ii) of 

SMCRA. 

4. CSR 38–2–3.15.f Permit 

Applications: Imposition of Conditions, 

Suspension and Revocation 

This amendment proposes to add a 

new subdivision, 3.15.f, regarding the 

imposition of conditions, suspension 

and revocation of disciplinary action 

and procedures for people approved to 

prepare, sign, or certify permit 

applications. 

As amended, 3.15.f reads as follows: 

3.15.f. Imposition of Conditions, 

Suspension and Revocation. 

3.15.f.1. If the Secretary takes one or more 

of the actions specified in subsection 3.15.e., 

the person adversely affected shall be 

notified. 

3.15.f.2. Such notice shall inform the 

person of the conditions or provisions 

violated and his or her right to request a 

hearing for the purpose of showing cause 

why his or her approved person status 

should not be revoked, suspended, made 

subject to conditions, or otherwise abridged. 

3.15.f.3. Upon request made in writing 

within fifteen days of service of the notice, 

the person shall be granted a hearing before 

the Secretary to show cause why his or her 

approved person status should not be 

suspended, revoked, made subject to 

conditions, or otherwise abridged. 

3.15.f.4. If the approved person requests a 

hearing, a hearing shall be held within thirty 

(30) days. Within sixty (60) days following 

the hearing, the Secretary shall determine 

whether cause exists, and furnish to the 

approved person a written decision or order 

setting forth the reasons therefor. 

Although there are no specific Federal 

requirements governing approved 

persons, these proposed revisions fall 

under the provisions of 30 CFR 777.11, 


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777.13, and 780.14(c) and sections 

507(b)(14) and 515(b)(10)(B)(ii) of 

SMCRA. 

5. CSR 38–2–3.28.b.1 Permit Revision 

This amendment proposes to add the 

references ‘‘subdivisions 3.2.b., 3.2.c., 

and 3.2.d. of this rule:’’ for additional 

clarification of the public notice 

requirements for a significant permit 

revision. As amended, subparagraph 

3.28.b.1 reads as follows: 

3.28.b.1. Where the permit revision 

constitutes a significant departure from the 

terms and conditions of the existing permit 

which may result in a significant impact in 

any of the following areas, it shall be deemed 

to be a significant revision and be subject to 

the public notice requirements of 

subdivisions 3.2.a, 3.2.b., 3.2.c. and 3.2.d. of 

this rule: 

These proposed revisions fall under 

the provisions of 30 CFR 774.13 and 

section 511(a)(2) of SMCRA. 

6. CSR 38–2–3.29.a Incidental 

Boundary Revisions 

This amendment proposes to delete 

language regarding incidental boundary 

revisions (IBRs) that involve the 

abatement of a violation where 

encroachment goes beyond the permit 

boundary, unless an equal amount of 

acreage covered under the IBR for 

encroachment is deleted from the 

permitted area and transferred to the 

encroachment area. As amended, 

subdivision 3.29.a reads as follows: 

3.29.a. Incidental Boundary Revisions 

(IBRs) shall be limited to minor shifts or 

extensions of the permit boundary into noncoal areas or areas where any coal extraction 

is incidental to or of only secondary 

consideration to the intended purpose of the 

IBR. IBRs shall also include the deletion of 

bonded acreage which is overbonded by 

another valid permit and for which full 

liability is assumed in writing by the 

successive permittee. Incidental Boundary 

Revisions shall not be granted for any 

prospecting operations. 

These proposed revisions fall under 

the provisions of 30 CFR 774.13 and 

section 511(a)(3) of SMCRA. 

7. CSR 38–2–3.29.b.2 Incidental 

Boundary Revisions—Acreage 

Limitation 

This amendment proposes to add 

language regarding the acreage 

limitation for underground mining and 

other related mining operations. Under 

the proposed revision, the State 

proposes to apply its underground 

mining acreage limit and waiver 

provisions to loadout operations, coal 

refuse disposal operations, and coal 

preparation operations. As amended, 

subparagraph 3.29.b.2 reads as follows: 

3.29.b.2. For purposes of surface mining 

operations, the maximum total acreage to be 

permitted under one or more IBR(s) shall not 

exceed twenty (20) percent of the original 

permitted acreage or a maximum of fifty (50) 

acres, whichever is less, throughout the life 

of the permit. Acreage limitation for IBR(s) 

on underground mining operations and other 

mining operations including but not limited 

to loadout operations, coal refuse disposal 

operations and coal preparation operations 

shall be limited to one hundred fifty (150) 

percent of the original permitted acreage or 

a maximum of fifty (50) acres, whichever is 

less, throughout the life of the permit; 

Provided, That the Secretary may grant a 

waiver specifying larger acre limits where the 

applicant demonstrates that the nature and 

complexity of the operation clearly requires 

more than fifty (50) acres for additional 

facilities to include but not be limited to site 

development, air shafts, fan ways, vent holes, 

roads, staging areas, etc. 

These proposed revisions fall under 

the provisions of 30 CFR 774.13 and 

section 511(a)(3) of SMCRA. 

8. CSR 38–2–3.29.d Incidental 

Boundary Revisions 

This amendment proposes to delete 

language regarding the findings the 

Secretary must make prior to approving 

IBRs. Currently, the Secretary must 

make six required findings prior to 

approving an IBR. As proposed, the 

State intends to delete language 

requiring the Secretary to find that the 

IBR does not constitute a change in 

postmining land use; will only involve 

lands for which the approved PHC is 

applicable; does not constitute a change 

in the mining method; and will not 

result in adverse environmental impacts 

of a larger scope or different nature from 

those described in the approved permit. 

Due to the proposed deletion of these 

four IBR findings, the State proposes to 

renumber 3.29.d.5 and 3.29.d.6 as 

3.29.d.1 and 3.29.d.2, respectively. As 

amended, subparagraph 3.29.d now 

only has two required findings and 

reads as follows: 

3.29.d. The Secretary shall make the 

following findings prior to approval of an 

IBR: 

3.29.d.1 The IBR will facilitate the 

orderly and continuous conduct of mining 

and reclamation operations. 

3.29.d.2 Except for underground 

operations, an area permitted under an IBR 

must be contiguous to the original permitted 

area. 

These proposed revisions fall under 

the provisions of 30 CFR 774.13 and 

section 511(a)(3) of SMCRA. 

9. CSR 38–2–3.29.e Incidental 

Boundary Revisions—Hydrologic— 

Consequences/Assessment—Significant 

or Non-significant 

This amendment proposes to delete 

language which gives the Secretary the 

authority to require IBR applications to 

be advertised and to provide for a 10- 

day public comment period. The 

amendment also proposes to add new 

language regarding the review of 

applications for IBR’s to determine if an 

updated probable hydrologic 

consequences determination or 

cumulative hydrologic impact 

assessment is required. The State also 

added language setting forth the basis by 

which an IBR is determined to be 

significant or non-significant. As 

amended, subparagraph 3.29.e reads as 

follows: 

3.29.e. Each application for an IBR shall be 

subject to review and approval by the 

Secretary. Each application shall be reviewed 

by the Secretary to determine if an updated 

probable hydrologic consequences 

determination or cumulative hydrologic 

impact assessment is required. The Secretary 

shall make a determination, on the basis of 

information provided in the IBR application, 

whether the IBR is of a significant or nonsignificant nature. The following criteria 

shall provide guidance for making such a 

determination. 

3.29.e.1. Where the IBR constitutes a 

significant departure from the terms and 

conditions of the existing permit which may 

result in a significant impact in any of the 

following areas, it shall be deemed to be 

significant and be subject to the public notice 

requirements of subdivisions 3.2.a., 3.2.b., 

3.2.c. and 3.2.d. of this rule: 

3.29.e.1.A. The health, safety, or welfare of 

the public; 

3.29.e.1.B. The hydrologic balance in the 

area of operation; 

3.29.e.1.C. The postmining land use; 

3.29.e.1.D. The method of mining; 

3.29.e.1.E. Adverse environmental impacts 

of a larger scope or different nature from 

those described in the approved permit; 

3.29.e.1.F. Areas prohibited from mining 

pursuant to the provisions of subsection (d) 

section 22 of the Act; and 

3.29.e.1.G. An individual’s legal right to 

receive notice, as prescribed by the 

provisions of this rule. 

3.29.e.2. Where the IBR constitutes only an 

insignificant departure from the terms and 

conditions of the approved existing permit, it 

shall be deemed to be non-significant, 

requiring no public notice. 

These proposed revisions fall under 

the provisions of 30 CFR 774.13 and 

section 511(a)(2) of SMCRA. 

10. CSR 38–2–9.3.f Revegetation 

Success Standards 

This amendment proposes to delete 

‘‘Where the postmining land use 

requires legumes and perennial 

grasses,’’ and add ‘‘For areas to be 


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53976 Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Proposed Rules 

developed for hayland or pasture use,’’ 

As amended, subparagraph 9.3.f reads 

as follows: 

9.3.f. For areas to be developed for hayland 

or pasture use, the operator shall achieve at 

least a ninety (90) percent ground cover and 

a productivity level as set forth by the 

Secretary during any two years of the 

responsibility period except for the first year. 

Substandard areas shall not exceed onefourth (1⁄4) acre in size nor total more than 

ten (10) percent of the area seeded. 

Exceptions to this standard may be 

authorized by the Secretary based on the 

following: 

These proposed revisions fall under 

the provisions of 30 CFR 816.116(b)(1) 

and 817.116(b)(1). 

11. Site Specific Bonding Tables 

This amendment is proposing to 

delete the Coal Bonding Calculations 

Tables 1, 2, 3, and 4 in subsection 11.5. 

In addition, subdivisions 11.5.c, 11.5.d, 

11.5.e, and 11.5.f propose to delete 

language referring to the Bonding 

Calculations Tables. The criterion for 

calculating site specific bonds remains 

the same in the existing regulations. 

Although there are no specific Federal 

requirements governing bonding 

calculations, these proposed revisions 

fall under the provisions of 30 CFR 

800.14. 

12. Section 5B–2A–3: Definitions 

This amendment is proposing to add 

the following definitions to the West 

Virginia Code 5B–2A–3. 

(2) ‘‘Master land use plan’’ means a 

plan as defined in 145 CSR 8; 

(3) Is renumbered (4) and the 

following definition for ‘‘Operator’’ is 

added: ‘‘Operator’’ means the definition 

in section three, article three, chapter 

twenty-two of this code; 

(4) Is renumbered (5) and the 

following definition for ‘‘Renewable and 

alternative energy’’ is added: 

‘‘Renewable and alternative energy’’ 

means energy produced or generated 

from natural or replenishable resources 

other than traditional fossil fuels or 

nuclear resources and includes, without 

limitation, solar energy, wind power, 

hydropower, geothermal energy, 

biomass energy, biologically derived 

fuels, energy produced with advanced 

coal technologies, coalbed methane, fuel 

produced by a coal gasification or 

liquefaction facility, synthetic gas, waste 

coal, tire-derived fuel, pumped storage 

hydroelectric power or similar energy 

sources. 

As amended, West Virginia Code 5B– 

2A–3 reads as follows: 

(a) For the purpose of this article, the 

following terms have the meanings ascribed 

to them: 

(2) ‘‘Master land use plan’’ means a plan 

as defined in 145 CSR 8; 

(4) ‘‘Operator’’ means the definition in 

section three, article three, chapter twentytwo of this code; 

(5) ‘‘Renewable and alternative energy’’ 

means energy produced or generated from 

natural or replenishable resources other than 

traditional fossil fuels or nuclear resources 

and includes, without limitation, solar 

energy, wind power, hydropower, geothermal 

energy, biomass energy, biologically derived 

fuels, energy produced with advanced coal 

technologies, coalbed methane, fuel 

produced by a coal gasification or 

liquefaction facility, synthetic gas, waste 

coal, tire-derived fuel, pumped storage 

hydroelectric power or similar energy 

sources. 

Although there are no specific Federal 

requirements governing master land use 

plans, these proposed revisions fall 

under the provisions of SMCRA 507, 

508, and 515(b), (c), (d) and (e) and 30 

CFR 780.23, 784.15, 784.16, 816/ 

817.133 and 824. 

13. Section 5B–2A–5: Powers and Duties 

This amendment proposes to add 

‘‘shall’’ after ‘‘assistance’’ in West 

Virginia Code 5B–2A–5(8). As amended, 

West Virginia Code 5B–2A–5(8) reads as 

follows: 

(8) On its own initiative or at the request 

of a community in close proximity to a 

mining operation, offer assistance to facilitate 

the development of economic or community 

assets. Such assistance shall include the 

preparation of a master land use plan 

pursuant to the provisions of section nine of 

this article. 

Although there are no specific Federal 

requirements governing master land use 

plans, these proposed revisions fall 

under the provisions of SMCRA 508 and 

30 CFR 780.23. 

14. Section 5B–2A–6: Community 

Impact Statement 

This amendment proposes to replace 

at West Virginia Code 5B–2A–6 (2) 

‘‘division’s’’ with ‘‘department’s’’; add 

‘‘county’’ after ‘‘local’’; delete 

‘‘economic’’ after ‘‘regional’’ and add 

‘‘or redevelopment’’ after 

‘‘development’’. This amendment 

proposes to add new language at (9) 

regarding a master land use plan; and at 

(9)(d) regarding receipt of a community 

impact statement. The old (d) is 

relettered to (e) and in (e)(1), ‘‘the 

effective date of this article’’ is deleted 

and ‘‘June 11, 1999’’ is added. 

As amended, West Virginia Code 5B– 

2A–6 reads as follows: 

(a)(2) The operator shall provide copies of 

the community impact statement to the 

division’s department’s office of mining 

reclamation and office of explosives and 

blasting and to the county commissions, 

county clerks’ offices and local, county or 

regional economic development or 

redevelopment authorities of the areas to be 

affected by the surface mining operations. 

(b) The community impact statement, 

where practicable, shall not be a highly 

technical or legalistic document, but shall be 

written in a clear and concise manner 

understandable to all citizens. The 

community impact statement shall include 

the following: 

(9) An acknowledgment of the 

recommendations of any approved master 

land use plan that pertains to the land 

proposed to be mined, including an 

acknowledgment of the infrastructure 

components needed to accomplish the 

designated post-mine land use required by 

the plan. 

(d) Within thirty days of receipt of a 

community impact statement pursuant to 

subdivision (2), subsection (a) of this section 

or a revised community impact statement 

pursuant to subsection (c) of this section, the 

local, county or regional development or 

redevelopment authorities of the areas to be 

affected by the surface mining operations 

shall provide a written acknowledgment of 

the receipt of this community impact 

statement or revised community impact 

statement to the department’s Division of 

Mining Reclamation, to the county 

commission or county commissions and to 

the office. 

(e) The provisions of this section shall 

apply as follows: 

(1) To all surface mining permits granted 

after June 11, 1999; and 

(2) At the first renewal date of all 

previously issued permits: Provided, That the 

permittee shall be afforded ninety days from 

said date to comply with the provisions of 

this section. 

Although there are no specific Federal 

requirements governing master land use 

plans, these proposed revisions fall 

under the provisions of SMCRA 507, 

508, and 515(b), (c), (d) and (e) and 30 

CFR 780.23, 784.15, 784.16, 816/ 

817.133 and 824. 

15. Section 5B–2A–9: Securing 

Developable Land and Infrastructure 

This amendment proposes to delete 

from (f) ‘‘Participation in a master land 

use plan is voluntary.’’ At (f)(1) delete 

‘‘State, local, county or regional 

development or redevelopment 

authorities may’’ and add ‘‘The county 

commission or other governing body for 

each county in which there are surface 

mining operations that are subject to 

this article shall’’ after ‘‘may’’; delete 

‘‘that include’’ after ‘‘needs’’ and add ‘‘, 

including, but not limited to, renewable 

and alternative energy uses, residential 

uses, highway uses,’’; add new language 

at the end of (f)(1) regarding designation 

of development or redevelopment 

authority and adoption of a master land 

use plan. (f)(2) is deleted and new 

language is added to (f)(2), (3)(A), (3)(B), 

(3)(C), and (3)(D) regarding master land 


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plan use; (3) is renumbered to (4) and 

‘‘subdivision (1) of this subsection’’ is 

deleted and ‘‘a master land use plan’’ is 

added; ‘‘relevant State, local,’’ is deleted 

after ‘‘the’’; ‘‘regional’’ is deleted after 

‘‘or’’; and ‘‘its designated’’ is added after 

‘‘or’’; ‘‘State, local,’’ is deleted after 

‘‘respective’’ and ‘‘regional’’ is deleted 

after ‘‘or’’; ‘‘State, local,’’ is added after 

‘‘relevant’’ in (4)(ii); ‘‘or other county 

governing body’’ is added after 

‘‘commissions’’; and (4) is renumbered 

to (5). 

As amended, West Virginia Code 5B– 

2A–9(f) reads as follows: 

(f) The office may secure developable land 

and infrastructure for a development office or 

county through the preparation of a master 

land use plan for inclusion into a reclamation 

plan prepared pursuant to the provisions of 

section ten, article three, chapter twenty-two 

of this code. No provision of this section may 

be construed to modify requirements of 

article three of said chapter. 

(1) The county commission or other 

governing body for each county in which 

there are surface mining operations that are 

subject to this article shall determine land 

and infrastructure needs within their 

jurisdictions through the development of a 

master land use plan which incorporates 

post-mining land use needs, including, but 

not limited to, renewable and alternative 

energy uses, residential uses, highway uses, 

industrial uses, commercial uses, agricultural 

uses, public facility uses or recreational 

facility uses. A county commission or other 

governing body of a county may designate a 

local, county, or regional development or 

redevelopment authority to assist in the 

preparation of a master land use plan. A 

county commission or other governing body 

of a county may adopt a master land use plan 

developed after July 1, 2009, only after a 

reasonable public comment period; 

(2) Upon the request of a county or 

designated development or redevelopment 

authority, the office shall assist the county or 

development or redevelopment authority 

with the development of a master land use 

plan; 

(3)(A) The Department of Environmental 

Protection and the Office of Coalfield 

Community Development shall review 

master land use plans existing as of July 1, 

2009. If the office determines that a master 

land use plan complies with the 

requirements of this article and the rules 

promulgated pursuant to this article, the 

office shall approve the plan on or before July 

1, 2010; 

(B) Master land use plans developed after 

July 1, 2009, shall be submitted to the 

department and the office for review. The 

office shall determine whether to approve a 

master land use plan submitted pursuant to 

this subdivision within three months of 

submission. The office shall approve the plan 

if it complies with the requirements of this 

article and the rules promulgated pursuant to 

this article; 

(C) The office shall review a master land 

use plan approved under this section every 

three years. No later than six months before 

the review of a master land use plan, the 

county or designated development or 

redevelopment authority shall submit an 

updated master land use plan to the 

department and the office for review. The 

county may submit its updated master land 

use plan only after a reasonable public 

comment period. The office shall approve the 

master land use plan if the updated plan 

complies with the requirements of this article 

and the rules promulgated pursuant to this 

article; 

(D) If the office does not approve a master 

land use plan, the county or designated 

development or redevelopment authority 

shall submit a supplemental master land use 

plan to the office for approval; 

(4) The required infrastructure component 

standards needed to accomplish the 

designated post-mining land uses identified 

in a master land use plan shall be developed 

by the county or its designated development 

or redevelopment authority. These standards 

must be in place before the respective county 

or development or redevelopment authority 

can accept ownership of property donated 

pursuant to a master land use plan. 

Acceptance of ownership of such property by 

a county or development or redevelopment 

authority may not occur unless it is 

determined that: (i) The property use is 

compatible with adjacent land uses; (ii) the 

use satisfies the relevant county or 

development or redevelopment authority’s 

anticipated need and market use; (iii) the 

property has in place necessary infrastructure 

components needed to achieve the 

anticipated use; (iv) the use is supported by 

all other appropriate public agencies; (v) the 

property is eligible for bond release in 

accordance with section twenty-three, article 

three, chapter twenty-two of this code; and 

(vi) the use is feasible. Required 

infrastructure component standards require 

approval of the relevant county commission, 

commissions or other county governing body 

before such standards are accepted. County 

commission or other county governing body 

approval may be rendered only after a 

reasonable public comment period; 

Although there are no specific Federal 

requirements governing master land use 

plans, these proposed revisions fall 

under the provisions of SMCRA 507, 

508, and 515(b), (c), (d) and (e) and 30 

CFR 780.23, 784.15, 784.16, 816/ 

817.133 and 824. 

16. Section 22–3–10: Reclamation Plan 

Requirements 

This amendment proposes to add new 

language to West Virginia Code 22–3– 

10(a)(3) regarding a variety of alternative 

uses; delete language regarding master 

plan for postmining land use; add new 

language regarding postmining land use; 

delete language regarding surface permit 

application and add language regarding 

master land use plan. This amendment 

also proposes to add new language at 

the end regarding the effective date of 

these amendments. 

As amended, West Virginia Code 22– 

3–10(a)(3) will read as follows: 

Each reclamation plan * * * shall include 

* * * a statement of: 

(3) The use which is proposed to be made 

of the land following reclamation, including 

a discussion of the utility and capacity of the 

reclaimed land to support a variety of 

alternative uses, including, but not limited 

to, renewable and alternative energy uses, 

residential uses, highway uses, industrial 

uses, commercial uses, agricultural uses, 

public facility uses or recreational facility 

uses, and the relationship of the use to 

existing land use policies and plans and the 

comments of any owner of the surface, other 

State agencies and local governments which 

would have to initiate, implement, approve 

or authorize the proposed use of the land 

following reclamation; 

(A) The post-mining land use proposed in 

any reclamation plan for lands proposed to 

be mined by surface mining methods shall 

comport with the land use that is specified 

in the approved master land use plan for the 

area as provided in section nine, article twoa, chapter five-b of this code: Provided, That 

the secretary may approve an alternative 

post-mining land use where the applicant 

demonstrates that: 

(i) The proposed post-mining land use is a 

higher and better use than the land use 

specified in the approved master land use 

plan; 

(ii) Site-specific conditions make 

attainment of a post-mining land use which 

comports with the land use that is specified 

in the approved master land use plan for the 

area impractical; or 

(iii) The post-mining land use specified in 

the approved master land use plan would 

substantially interfere with the future 

extraction of mineable coal, as that term is 

defined in 110 CSR 1 or a successor rule, 

from the land to be mined. 

(B) Existing permits with approved 

reclamation plans may be modified by the 

operator through an appropriate permit 

revision to include a post-mining land use 

which comports with the land use that is 

specified in the approved master land use 

plan for the area as provided in section nine, 

article two-a, chapter five-b of this code; 

(C) By complying with a master land use 

plan that has been approved in accordance 

with article two-a, chapter five-b of this code, 

a post-mining land use satisfies the 

requirements for an alternative post-mining 

land use and satisfies the variance 

requirements set forth in subsection (c), 

section thirteen, article three, chapter twentytwo of this code if applicable to the proposed 

use; 

(b) A reclamation plan pending approval as 

of the effective date of this section may be 

amended by the operator to provide for a 

post-mining land use that comports with a 

master land use plan that has been approved 

in accordance with article two-a, chapter 

five-b of this code. 

(d) The amendments to this section by the 

first extraordinary session of the Legislature 

in 2009 are effective upon the approval of the 

corresponding amendments to West 

Virginia’s State program, as that term is 

defined in the Federal Surface Mining 

Control and Reclamation Act of 1977, 30 

U.S.C. 1291, by the Federal Office of Surface 

Mining Reclamation and Enforcement. 


pwalker on DSK8KYBLC1PROD with PROPOSALS
53978 Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Proposed Rules 

Although there are no specific Federal 

requirements governing master land use 

plans, these proposed revisions fall 

under the provisions of SMCRA 507, 

508, and 515(b), (c), (d) and (e) and 30 

CFR 780.23, 784.15, 784.16, 816/ 

817.133 and 824. 

17. Section 22–3–11 Bonds 

Subsection 22–3–11(h)(1) of the 

WVSCMRA is amended by deleting the 

year 2008, and adding language to 

provide that, ‘‘For tax periods 

commencing on and after July 1, 2009, 

every person conducting coal surface 

mining shall remit a special reclamation 

tax * * *’’ Former subparagraph (A) is 

revised by deleting language which 

provides that the special reclamation tax 

be remitted for the initial period of 

twelve months, ending June 30, 2009, 

and the word ‘‘seven’’ is deleted. As 

modified, the special reclamation tax is 

increased from seven and four-tenths to 

fourteen and four-tenths cents per ton of 

clean coal mined. 

Former subparagraph (B) is amended 

by deleting language which provides 

that ‘‘[A]n additional seven cents per 

ton of clean coal mined, the proceeds of 

which shall be deposited in the Special 

Reclamation Fund.’’ This revision 

eliminates the additional seven cents 

tax which previously funded the Special 

Reclamation Fund. 

Furthermore, language is deleted 

which provides that the additional 

seven cents tax shall be reviewed and, 

if necessary, adjusted annually by the 

Legislature upon the recommendation of 

the council pursuant to the provisions 

of section seventeen, article one of this 

chapter. This provision is modified to 

provide that, ‘‘Beginning with the tax 

period commencing on July 1, 2009, and 

every two years thereafter, the special 

reclamation tax shall be reviewed by the 

Legislature to determine whether the tax 

should be continued:’’ 

As amended, West Virginia Code 22– 

3–11(h)(1) reads as follows: 

(h)(1) For tax periods commencing on and 

after July 1, 2009, every person conducting 

coal surface mining shall remit a special 

reclamation tax of fourteen and four-tenths 

cents per ton of clean coal mined, the 

proceeds of which shall be allocated by the 

secretary for deposit in the Special 

Reclamation Fund and the Special 

Reclamation Water Trust Fund. The tax shall 

be levied upon each ton of clean coal severed 

or clean coal obtained from refuse pile and 

slurry pond recovery, or clean coal from 

other mining methods extracting a 

combination of coal and waste material as 

part of a fuel supply. Beginning with the tax 

period commencing on July 1, 2009, and 

every two years thereafter, the special 

reclamation tax shall be reviewed by the 

Legislature to determine whether the tax 

should be continued: Provided That the tax 

may not be reduced until the Special 

Reclamation Fund and Special Reclamation 

Water Trust Fund have sufficient moneys to 

meet the reclamation responsibilities of the 

State established in this section. 

This proposed amendment was 

announced earlier in the July 22, 2009, 

Federal Register (74 FR 36113–36226) 

as an interim rule (WV–115–FOR) and 

approved on a temporary basis. 

III. Public Comment Procedures 

Under the provisions of 30 CFR 

732.17(h), we are seeking your 

comments on whether these 

amendments satisfy the applicable 

program approval criteria of 30 CFR 

732.15. If we approve these revisions, 

they will become part of the West 

Virginia program. 

Written Comments 

Send your written comments to OSM 

at one of the addresses given above. 

Your comments should be specific, 

pertain only to the issues proposed in 

this rulemaking, and include 

explanations in support of your 

recommendations. We may not consider 

or respond to your comments when 

developing the final rule if they are 

received after the close of the comment 

period (see DATES) or sent to an address 

other than those listed above (see 

ADDRESSES). 

Availability of Comments 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Public Hearing 

If you wish to speak at the public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT until 

4 p.m. (local time), on November 5, 

2009. If you are disabled and need 

reasonable accommodations to attend a 

public hearing, contact the person listed 

under FOR FURTHER INFORMATION

CONTACT. We will arrange the location 

and time of the hearing with those 

persons requesting the hearing. If no one 

requests an opportunity to speak, we 

will not hold a hearing. To assist the 

transcriber and ensure an accurate 

record, we request, if possible, that each 

person who speaks at the public hearing 

provide us with a written copy of his or 

her comments. The public hearing will 

continue on the specified date until 

everyone scheduled to speak has been 

given an opportunity to be heard. If you 

are in the audience and have not been 

scheduled to speak and wish to do so, 

you will be allowed to speak after those 

who have been scheduled. We will end 

the hearing after everyone scheduled to 

speak and others present in the 

audience who wish to speak, have been 

heard. 

Public Meeting 

If only one person requests an 

opportunity to speak, we may hold a 

public meeting rather than a public 

hearing. If you wish to meet with us to 

discuss the amendment, please request 

a meeting by contacting the person 

listed under FOR FURTHER INFORMATION

CONTACT. All such meetings will be 

open to the public and, if possible, we 

will post notices of meetings at the 

locations listed under ADDRESSES. We 

will make a written summary of each 

meeting a part of the Administrative 

Record. 

IV. 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 exempt from review by 

the Office of Management and Budget 

under Executive Order 12866. 

Executive Order 12988—Civil Justice 

Reform 

The Department of the Interior has 

conducted the reviews required by 

section 3 of Executive Order 12988 and 

has determined that this rule meets the 

applicable standards of subsections (a) 

and (b) of that section. However, these 

standards are not applicable to the 

actual language of State regulatory 

programs and program amendments 

because each program is drafted and 

promulgated by a specific State, not by 

OSM. Under sections 503 and 505 of 

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

the Federal regulations at 30 CFR 

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

decisions on proposed State regulatory 

programs and program amendments 

submitted by the States must be based 

solely on a determination of whether the 

submittal is consistent with SMCRA and 

its implementing Federal regulations 

and whether the other requirements of 

30 CFR Parts 730, 731, and 732 have 

been met. 


pwalker on DSK8KYBLC1PROD with PROPOSALS
Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Proposed Rules 53979 

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 Federallyrecognized Indian Tribes and have 

determined that the rule does not have 

substantial direct effects on one or more 

Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

The basis for this determination is that 

our decision is on a State regulatory 

program and does not involve a Federal 

regulation involving Indian lands. 

Executive Order 13211—Regulations 

that Significantly Affect the Supply, 

Distribution, or Use of Energy 

On May 18, 2001, the President issued 

Executive Order 13211 which requires 

agencies to prepare a Statement of 

Energy Effects for a rule that is (1) 

considered significant under Executive 

Order 12866, and (2) likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Because 

this rule is exempt from review under 

Executive Order 12866 and is not 

expected to have a significant adverse 

effect on the supply, distribution, or use 

of energy, a Statement of Energy Effects 

is not required. 

National Environmental Policy Act 

This rule does not require an 

environmental impact statement 

because section 702(d) of SMCRA (30 

U.S.C. 1292(d)) provides that agency 

decisions on proposed State regulatory 

program provisions do not constitute 

major Federal actions within the 

meaning of section 102(2)(C) of the 

National Environmental Policy Act (42 

U.S.C. 4332(2)(C)). 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements that 

require approval by OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3507 et seq.). 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). The State 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), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: (a) Does not have an annual 

effect on the economy of $100 million; 

(b) Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions; and (c) Does not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. This 

determination is based upon the 

analysis performed under various laws 

and executive orders for the counterpart 

Federal regulations. 

Unfunded Mandates 

This rule will not impose an 

unfunded mandate on State, local, or 

Tribal governments or the private sector 

of $100 million or more in any given 

year. This determination is based upon 

the analysis performed under various 

laws and executive orders for the 

counterpart Federal regulations. 

List of Subjects in 30 CFR Part 948 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: August 8, 2009. 

Michael K. Robinson, 

Acting Regional Director, Appalachian 

Region. 

[FR Doc. E9–25314 Filed 10–20–09; 8:45 am] 

BILLING CODE 4310–05–P 

GENERAL SERVICES 

ADMINISTRATION 

41 CFR Parts 300–70 and 302–1 

[FTR Case 2009–306; Docket 2009–0011, 

Sequence 1] 

RIN 3090–AI94 

Federal Travel Regulation (FTR); FTR 

Case 2009–306; Relocation Allowances 

AGENCY: Office of Governmentwide 

Policy (OGP), General Services 

Administration (GSA). 

ACTION: Proposed rule. 

SUMMARY: This proposed rule defines a 

process for collecting transaction-level 

data regarding relocation of Federal 

civilian employees. Specifically, this 

proposed rule would require that 

agencies that spend more than $5 

million per year on travel and relocation 

send transaction-level data on relocation 

to GSA at least quarterly. GSA will store 

this data in a data warehouse that the 

agencies will be able to query to answer 

operational, managerial, and policy 

questions. In addition to the transactionlevel reporting process, this proposed 

rule also would establish an annual 

reporting requirement for data regarding 

employee relocation and would modify 

the existing requirement for large 

agencies to collect and report data on 

temporary duty travel on an annual 

basis, instead of biennially. 

DATES: Comments must be received on 

or before December 21, 2009. 

ADDRESSES: Submit comments 

identified by FTR case 2009–306 by any 

of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for any 

document by typing in the FTR case 

number (for example, FTR case 2009– 

306) and clicking on the ‘‘Go’’ button. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(MVPR), 1800 F Street, NW., Room 

4041, ATTN: Hada Flowers, 

Washington, DC 20405. 

Instructions: Please submit comments 

only and cite FTR case 2009–306 in all 

correspondence related to this case. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. 


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