Wyoming Regulatory Program, 52677-52685 [E9-24682]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 74, Number 197 (Wednesday, October 14, 2009)]
[Rules and Regulations]
[Pages 52677-52685]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-24682]


=======================================================================
-----------------------------------------------------------------------

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 self-bonding 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

[[Page 52678]]

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 self-bonding 
mandatory criteria, including various ratio measures of financial 
strength and percent limits of self-bonding obligations versus percent 
of tangible net worth for operator self-bonding applicants; Chapter 11, 
Section 2(a)(xii)(B), dealing with certain self-bonding mandatory 
criteria, including various ratio measures of financial strength and 
percent limits of self-bonding 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 self-bonding 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

[[Page 52679]]

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 self-bond 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

[[Page 52680]]

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 self-bonds 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 self-bonding 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 self-bonds 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 self-bond 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 self-bonding 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 self-bonding, 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

[[Page 52681]]

authority from accepting operator self-bonds 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 self-bonds 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 self-bonding 
capacity (25% to 30% or 35% of Net Worth).
    Preamble language cited above makes clear that the Federal limit 
for self-bonds 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 self-bonding 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 self-bond. 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

[[Page 52682]]

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 self-bond is in fact 
collectable, as well as the methods of collection. Next, Wyoming 
explained that the availability of methods for collecting assets of 
non-parent 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 non-parent 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 non-domestic 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 self-bond 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, co-obligee, 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 self-bonding 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 non-parent 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.

[[Page 52683]]

    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 self-bonding 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 self-bonding, 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 non-parent 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 
self-bond 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

[[Page 52684]]

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 
newly-created 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

[[Page 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.

0
For the reasons set out in the preamble, 30 CFR part 950 is amended as 
set forth below:

PART 950--WYOMING

0
1. The authority citation for part 950 continues to read as follows:

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


0
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:


Sec.  950.15  Approval of Wyoming regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  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