West Virginia Regulatory Program, 12739-12744 [2020-03751]

Agencies

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

[Federal Register Volume 85, Number 43 (Wednesday, March 4, 2020)]
[Rules and Regulations]
[Pages 12739-12744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03751]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[SATS No: WV-122-FOR; Docket ID OSM-2013-0011 S1D1S SS08011000 
SX064A000 201S180110 S2D2S SS08011000 SX064A000 20XS501520]


West Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendments.

-----------------------------------------------------------------------

SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving amendments 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 contains both West 
Virginia statutory and regulatory revisions. West Virginia initially 
submitted an amendment to revise its West Virginia Surface Coal Mining 
and Reclamation Act (WVSCMRA). Senate Bill 462 amends the West Virginia 
Code to conform to the State's requirements for informal conferences 
and decisions on surface coal mining permit applications with parallel 
provisions of Federal law. Committee Substitute for House Bill 2352 
amends the West Virginia Code to provide tax incentives for coal mine 
operators who reclaim bond forfeiture sites. Subsequently, West 
Virginia submitted another amendment consisting of a Special 
Reclamation Tax Credit Rule to implement the proposed statutory 
revisions providing tax incentives to coal mine operators to reclaim 
bond forfeiture sites.

DATES: This rule is effective April 3, 2020.

FOR FURTHER INFORMATION CONTACT: Mr. Ben Owens, Acting Director, 
Charleston Field Office, Telephone: (304) 347-7158. Email: 
[email protected].

SUPPLEMENTARY INFORMATION: 
I. Background on the West Virginia Program
II. Submission of the Amendments
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews

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, State laws and regulations 
that govern surface coal mining and reclamation operations in 
accordance with the Act and consistent with the implementing Federal 
regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis of this 
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.

[[Page 12740]]

II. Submission of the Amendments

    By letter dated August 14, 2013, and received electronically by us 
on August 16, 2013 (Administrative Record Number 1587), 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.). The amendment included changes to West Virginia's 
statute, the West Virginia Code (W. Va. Code), as contained in Enrolled 
Committee Substitute for House Bill 2352 and Enrolled Senate Bill 462.
    Committee Substitute for House Bill 2352 amends W. Va. Code sec. 
22-3-11(g) and (h) to provide tax incentives for mine operators who 
reclaim bond forfeiture sites. On April 13, 2013, the West Virginia 
Legislature adopted the Committee Substitute for House Bill 2352. On 
April 29, 2013, the Governor signed the statutory revisions into law. 
These changes became effective under State law on July 12, 2013.
    Senate Bill 462 amends W. Va. Code secs. 22-3-20 and 21 to ensure 
the State's requirements for informal conferences and decisions on 
surface coal mining permit applications conform, more closely, with 
parallel provisions of Federal law. The West Virginia Legislature 
passed Senate Bill 462 on April 11, 2013, and the Governor signed it 
into law on April 29, 2013. The changes became effective under West 
Virginia law on July 10, 2013. We announced West Virginia's proposed 
amendments in the May 20, 2014, Federal Register (79 FR 28858). In that 
notice we also opened the public comment period and provided an 
opportunity for a public hearing on the provisions (Administrative 
Record Number WV-1588). The public comment period closed on June 19, 
2014.
    On June 6, 2014, the West Virginia State Tax Department filed a 
Special Reclamation Tax Credit Rule with the Secretary of State to 
implement the special reclamation tax incentive revisions at W. Va. 
Code sec. 22-3-11(g) and (h) for coal mine operators who reclaim bond 
forfeiture sites within the State. The Committee Substitute for Senate 
Bill 167 authorized the statutory revisions. On March 8, 2014, the West 
Virginia Legislature passed the revisions to the statute. The Governor 
approved the bill on March 31, 2014. On August 7, 2014, WVDEP submitted 
the proposed rule to us at a meeting of the Special Reclamation Fund 
Advisory Council (Administrative Record Number WV-1597). The Special 
Reclamation Tax Credit Rule is set forth in the West Virginia 
regulations, known as the West Virginia Code of State Rules (CSR) at 
secs. 110-29-1 through 6. We announced the proposed regulatory 
revisions in the Federal Register on November 13, 2014 (79 FR 67396) 
and reopened the comment period to provide the public 15 additional 
days to comment on the proposed rule (Administrative Record Number WV-
1598). The public comment period closed on November 28, 2014.

III. OSMRE's Findings

    Following are OSMRE's findings about West Virginia's amendments 
under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. As 
discussed below, we are approving the proposed State statutory and 
regulatory amendments with certain understandings. Any non-substantive 
wording or editorial changes that are not specifically discussed below 
have been approved without further discussion. However, the full text 
of the program amendment is available at https://www.regulations.gov.

A. W. Va. Code Sec. 22-3-11(g) and (h)--Special Reclamation Tax 
Incentive

    In accordance with Committee Substitute for House Bill 2352, the 
State proposes to add new language to sec. 22-3-11(g) and (h) of the W. 
Va. Code, which encompasses the WVSCMRA, providing coal mine operators 
with tax incentives to reclaim bond forfeiture sites within the State.
    Subsection (g)(3)(A) provides that a tax credit shall be granted 
against the special reclamation tax imposed by subsection (i) of W. Va. 
Code sec. 22-3-11 to any coal mine operator who performs reclamation or 
remediation at a bond forfeiture site, which otherwise would have been 
reclaimed using funds from the Special Reclamation Fund or Special 
Reclamation Water Trust Fund. West Virginia Code sec. 22-3-11(i), which 
is part of the West Virginia program, imposes a tonnage tax upon mined, 
cleaned coal. Proceeds generated by this tax are deposited in the 
Special Reclamation Fund and the Special Reclamation Water Trust Fund. 
West Virginia Code sec. 22-3-11(g)(3)(B) provides that the amount of 
the reclamation tax credit granted shall be equal to the amount that 
the Tax Commissioner determines, based on the project costs as shown in 
the records of the Secretary, that would have been spent from the 
Special Reclamation Fund or Special Reclamation Water Trust Fund to 
accomplish the reclamation or remediation performed by the coal mine 
operator. This also includes expenditures for water treatment. West 
Virginia Code sec. 22-3-11(g)(3)(C) provides that to claim the credit, 
the mine operator must file with the Tax Commissioner a written 
application seeking the amount of the credit earned. Within 30 days of 
receipt of the application, the Tax Commissioner will issue a 
certification of the amount of tax credit to be allocated to the 
eligible taxpayer. If the amount of the credit is less than the amount 
applied for, the Tax Commissioner must set forth in writing the reasons 
for the difference. If no certification is issued within the 30-day 
period, the application will be deemed certified. Any decision of the 
Tax Commissioner is appealable pursuant to the West Virginia Tax 
Procedure and Administration Act as set forth in Chapter 11, Article 10 
of the West Virginia Code. Applications for certification of the 
proposed tax credit must contain the information required and be in the 
detail and format as required by the Tax Commissioner.
    These proposed revisions are intended to provide tax incentives for 
coal mine operators who reclaim bond forfeiture sites within the State 
that would normally be reclaimed by WVDEP's Office of Special 
Reclamation (OSR) through the State's alternative bonding system, which 
is commonly known as the Special Reclamation Fund. We are approving W. 
Va. Code sec. 22-3-11(g)(3) with the understanding that the reclamation 
of a bond forfeiture site by another party must be done in a timely 
manner and in accordance with the approved reclamation plan or 
modification thereof, including the treatment of any water pollution 
discharge. Each reclamation plan should include a description of the 
measures an operator must take during the reclamation process to ensure 
the protection of the quality and quantity of surface water and 
groundwater systems. In addition, discharges from bond forfeiture sites 
within West Virginia are subject to National Pollutant Discharge 
Elimination System (NPDES) permitting requirements, including 
compliance with applicable water quality standards. An operator must 
demonstrate compliance with applicable effluent limitations and water 
quality standards to ensure that the hydrologic balance is preserved. 
Furthermore, as provided by W. Va. Code sec. 22-3-11(g)(3)(B), 
reimbursement for such reclamation must be limited to the amount of 
money that OSR would have expended to complete the bond forfeiture 
reclamation project. Finally, if the Tax Commissioner fails to issue a 
tax credit

[[Page 12741]]

certification within the required time period, as provided by W. Va. 
Code sec. 22-3-11(g)(3)(C), the amount of reimbursement provided to the 
operator cannot exceed the estimated cost of reclamation by the State. 
Given these requirements, we find that the proposed revisions at W. Va. 
Code sec. 22-3-11(g)(3) are not inconsistent with the Federal bonding 
requirements at sections 509 and 519 of SMCRA (30 U.S.C. 1259 and 1269) 
and 30 CFR 800.11(e) and 30 CFR 800.50. Therefore, we approve West 
Virginia's submission.
    The proposed addition of W. Va. Code sec. 22-3-11(h) grants the Tax 
Commissioner authority to promulgate rules for legislative approval to 
carry out the purposes of this section. The pre-existing subsections 
(i) through (o) have been re-lettered to conform to the proposed 
changes.
    The promulgation of legislative rules by the West Virginia Tax 
Commissioner, as provided by subsection (h), to implement the tax 
incentive requirements at subsection (g) are addressed in Finding D 
below. The other changes to W. Va. Code sec. 22-3-11(i) through (o) are 
found to be non-substantive; thus, requiring no further action.

B. W. Va. Code Sec. 22-3-20--Informal Conference

    In accordance with Senate Bill 462, West Virginia proposes to 
revise language extending the time to hold informal conferences on 
surface coal mining permit applications. Proposed subsection 20(b) 
provides when an informal conference will be held on a surface coal 
mining permit application. The State currently requires that informal 
conferences be held within three weeks after the public comment period 
closes. Under the proposed amendment, the Secretary must hold the 
informal conference on the surface coal mining permit application 
within a reasonable time after the close of the public comment period.
    As proposed, subsection 20(b) provides that if any person with an 
interest that may be adversely affected by the mining operation or the 
officer or head of any Federal, state, or local governmental agency may 
file written objections and request an informal conference within 30 
days of the last publication of the required legal advertisement. Upon 
a request, the Secretary shall hold an informal conference in the 
locality of the proposed mining operation within a reasonable time 
after the close of the public comment period. West Virginia did not 
explain its decision for changing the timeframe for holding an informal 
conference on a permit application.
    While the Federal regulations at 30 CFR 773.6(c)(2) also require 
the regulatory authority to hold an informal conference ``within a 
reasonable time following the receipt of the request,'' we encourage 
West Virginia to consider modifying its regulations at W. Va. CSR sec. 
38-2-3.2.d and W. Va. CSR sec. 38-2-3.27.c.2 and specify a deadline for 
holding an informal conference on a permit application. When crafting 
the Federal regulations, we granted the regulatory authority discretion 
to determine what was ``reasonable'' in accordance with its approved 
program. Failure to hold a timely informal conference could result in 
unnecessary delays in rendering a decision on a permit application. 
Nevertheless, we find that the proposed revision at W. Va. Code sec. 
22-3-20(b) is not inconsistent with the Federal informal conference 
provisions at 30 CFR 773.6(c) and 773.7(a) and section 513 and 514 of 
SMCRA (30 U.S.C. 1263 and 1264). Therefore, we are approving the 
proposed amendment to W. Va. Code sec. 22-3-20(b).

C. W. Va. Code Sec. 22-3-21--Informal Conference

    In accordance with Senate Bill 462, West Virginia proposes to 
extend the time in which the Secretary must issue or deny a permit 
application. Currently, if an informal conference is held, the 
Secretary must issue a decision granting or denying a permit, in whole, 
or in part, within 30 days of the informal conference. Under the 
proposed revision, West Virginia seeks to extend the time for the 
Secretary to issue or deny a surface coal mining permit from 30 days to 
60 days.
    The proposed State revision mirrors the Federal provisions at 30 
CFR 773.7(a) and section 514 of SMCRA (30 U.S.C. 1264). We find the 
proposed revision at W. Va. Code sec. 22-3-21(a) to be no less 
effective than the Federal informal conference provisions at 30 CFR 
773.7 and no less stringent than section 514 of SMCRA. Therefore, we 
are approving the proposed amendment to W. Va. Code sec. 22-3-21.

D. W. Va. CSR Sec. 110-29-1--Special Reclamation Tax Credit

    This proposed amendment to the West Virginia regulations clarifies 
and implements the proposed revisions to W. Va. Code sec. 22-3-11(g) 
and (h) relating to special reclamation tax incentives for mine 
operators who reclaim bond forfeiture sites within West Virginia. West 
Virginia proposes to add the Special Reclamation Tax Credit regulations 
it proposed in W. Va. CSR secs. 110-29-1 through 110-29-6, which would 
represent a new section of the West Virginia regulations.
    As discussed in OSMRE's November 13, 2014, Federal Register (79 FR 
6739), non-substantive additions to W. Va. CSR sec. 110-29-2 include 
definitions of ``Act,'' ``Bond forfeited mine site,'' ``Secretary,'' 
and ``Tax Commissioner.'' Therefore, no further action is required 
regarding those changes.
    Proposed W. Va. CSR sec. 110-29-1.5 clarifies that the special 
reclamation tax credit is only available to qualified operators for 
taxable years beginning on or after July 12, 2013. In addition, W. Va. 
CSR sec. 110-29-3.3 provides that the tax credit may only be taken 
against the special reclamation tax imposed under W Va. Code sec. 22-3-
11.
    Proposed W. Va. CSR sec. 110-29-2.4 defines ``qualified operator'' 
as any person who obtains a permit under the WVSCMRA to mine coal and 
perform reclamation on a bond forfeited mine site and that qualifies 
for the special reclamation tax credit.
    Proposed W. Va. CSR sec. 110-29-4 sets forth requirements governing 
the application for and the amount of the tax credit. Subsection 4 
provides that a qualified operator may reclaim the bond forfeited mine 
site pursuant to either an Article 3 [surface or underground mining] 
permit or a reclamation agreement. The amount of tax credit granted to 
the qualified operator is based on the amount of money that would have 
been spent from the Special Reclamation Fund and the Special 
Reclamation Water Trust Fund on the bond-forfeited site for land 
reclamation and/or water treatment as determined and certified by the 
WVDEP Secretary.
    Proposed W. Va. CSR sec. 110-29-5 specifies operator eligibility 
requirements for the tax credit and the limitation of the tax credit. 
An operator is not eligible to receive a tax credit for performing 
reclamation on a mine site that he or she has previously forfeited. A 
qualified operator may use the tax credit to offset payment of, or 
liability for, the special reclamation tax for the tax year or carry it 
forward for use in future tax years until no credit is remaining.
    Proposed W. Va. CSR sec. 110-29-6 contains general procedures to 
claim and administer the tax credit. The qualified operator must 
provide complete and accurate forms and other information to claim the 
tax credit. In addition, the qualified operator must maintain records 
to verify the validity of its eligibility for the tax credit and the 
amount of tax credit claimed. Finally,

[[Page 12742]]

the Tax Commissioner has the authority to audit the qualified operator.
    West Virginia currently has 268 bond forfeiture sites in various 
stages of land reclamation. In addition, water treatment activities are 
ongoing at 163 bond forfeiture sites, and water discharges at other 
bond forfeiture sites are being evaluated and may require treatment by 
the State. The proposed special reclamation tax credit requirements are 
intended to provide the WVDEP an alternative means of reclaiming bond 
forfeiture sites under West Virginia's alternative bonding program. 
However, bond forfeiture reclamation, including water treatment, by a 
qualified operator or other party must comply with the same standards 
established under the approved program. Nothing in the proposed rule, 
as described above, can modify or supersede West Virginia's permanent 
regulatory program requirements as approved by OSMRE. It is with this 
understanding that we find the proposed Special Reclamation Tax Credit 
provisions at W. Va. CSR secs. 110-29-1 through 6 to be no less 
stringent than the Federal statutory bonding requirements at sections 
509 and 519 of SMCRA and no less effective than the Federal regulations 
at 30 CFR 800.11(e) and 800.50. Therefore, we approve the proposed 
amendment.

IV. Summary and Disposition of Comments

Public Comments

    We requested public comments on the proposed amendments; however, 
we did not receive any public comments.

Federal Agency Comments

    On May 22, 2014, and September 22, 2014, under 30 CFR 
732.17(h)(11)(i) and section 503(b) of SMCRA (30 U.S.C. 1253), we 
requested comments on the amendments from various Federal agencies with 
an actual or potential interest in the West Virginia program 
(Administrative Record Numbers WV-1589 and WV-1601).
    The Mine Safety and Health Administration, U.S. Department of Labor 
(MSHA) submitted its response on June 27, 2014, (Administrative Record 
Number 1591). MSHA did not have any comments on the proposed changes to 
the revisions in West Virginia's permanent surface coal mining 
regulatory program.
    The Bureau of Land Management (BLM) submitted its response on June 
30, 2014, (Administrative Record Number 1592). The BLM did not have any 
comments on the proposed changes to the revisions in West Virginia's 
permanent surface coal mining regulatory program.
    The Natural Resources Conservation Services (NRCS) submitted its 
response on June 27, 2014, (Administrative Record Number 1593). The 
NRCS did not have any comments on the proposed changes to the revisions 
in West Virginia's permanent surface coal mining regulatory program.

Environmental Protection Agency (EPA) Comments and Concurrence

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
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 West Virginia proposed 
to make in this amendment pertain to air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment. However, on 
May 22, 2014 and September 22, 2014, under 30 CFR 732.17(h)(11)(i), we 
requested comments from the EPA on the amendments (Administrative 
Record Nos. 1589 and 1601). EPA did submit the following comments on 
the proposed State amendments.
    On July 24, 2014, EPA Region III provided us with comments on the 
State's statutory proposal to provide operators tax incentives for 
reclaiming bond forfeiture sites. According to EPA, discharges from 
bond forfeiture sites are subject to NPDES permitting requirements, 
including compliance with applicable water quality standards. In 
addition, the concept of reclamation includes protection and/or 
restoration of the hydrologic balance, including water quality. EPA 
noted that each reclamation plan should include a detailed description 
of the measures to be taken during the reclamation process to ensure 
the protection of the quality of surface and ground water systems, both 
on-site and off-site. EPA stated that the reclamation plan and funding 
mechanisms should account for the need to comply with applicable 
provisions of the Clean Water Act. EPA acknowledged that it supports 
all efforts toward finding the most effective approaches for mitigating 
future drainage problems from bond forfeiture mining operations. 
According to EPA, to prevent and/or remediate perpetual postmining 
drainage problems, it is important to have both a well-funded bonding 
program and incentives for operators to assist with reclamation of bond 
forfeiture mine sites.
    On October 20, 2014, EPA submitted a response to our request for 
comments on the State's proposed Special Reclamation Tax Credit Rule. 
EPA acknowledged that it had reviewed the proposed amendment, but it 
would not be providing comments on it. However, they appreciated the 
opportunity to review the proposed revisions.
    As discussed herein, we are approving the proposed amendments with 
the understanding that discharges from bond forfeiture sites within 
West Virginia will comply with NPDES permitting requirements, including 
applicable water quality standards. Furthermore, we agree that West 
Virginia's alternative bonding system must provide sufficient revenue 
to ensure that discharges from bond forfeiture sites will comply with 
applicable Clean Water Act provisions. We also agree that to prevent 
and/or remediate perpetual postmining drainage problems, it is 
important to have both a well-funded bonding program and incentives for 
operators to assist with the reclamation of bond forfeiture mine sites. 
Finally, we find that the proposed amendments, if implemented as 
discussed herein, should ensure that WVDEP will be able to achieve 
these objectives, while providing operators incentives to assist in the 
reclamation of bond forfeiture sites within West Virginia.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Under Federal regulations at 30 CFR 732.17(h)(4), we are required 
to solicit comments from the SHPO and ACHP on amendments that may have 
an effect on historic properties. Although we requested comments on 
both proposed State statutory and regulatory amendments, we did not 
receive comments from the SHPO or ACHP on either amendment.

V. OSMRE's Decision

    Based on the above findings, we are approving amendments that 
provide tax incentives for operators who reclaim bond forfeiture sites 
and revisions to West Virginia's informal conference provisions as 
submitted by WVDEP on August 14, 2013 (Administrative Record Number WV-
1587). However, as discussed in Finding A, above, we are approving the 
revisions to W. Va. Code sec. 22-3-11(g) with the understanding that 
the reclamation of a bond forfeiture site by another party must be done 
in a timely manner and in accordance with the approved reclamation plan 
or modification thereof. In addition, discharges from bond forfeiture 
sites are subject to NPDES permitting requirements, including 
applicable

[[Page 12743]]

water quality standards. Reimbursement for such reclamation must be 
limited to the amount of money that WVDEP would have expended to 
complete the bond forfeiture reclamation project. Finally, if the Tax 
Commissioner fails to issue a tax credit certification within the 
required time period, the amount of reimbursement provided to the 
operator cannot exceed the estimated cost of reclamation by the State. 
If, in future oversight reviews, we should determine that West Virginia 
is not applying these provisions in accordance with our approval, other 
amendments may be required.
    We are also approving the State's Special Reclamation Tax Credit 
Rule, found at W. Va. CSR secs. 110-29-1 through 6 as submitted by 
WVDEP on August 7, 2014 (Administrative Record Number WV-1597). West 
Virginia's proposed revisions at W. Va. Code sec. 22-3-11(g) clarify 
the special reclamation tax incentive provisions. However, as discussed 
above in Finding D, we are approving the Special Reclamation Tax Credit 
Rule with certain stipulations. Reclamation, including water treatment, 
by a qualified operator or other party at a bond forfeiture site under 
this amendment must comply with the same standards as required under 
the approved program. In addition, nothing in the proposed amendment 
can modify or supersede West Virginia's permanent regulatory program 
requirements as approved by us.
    To implement these decisions, we are amending the Federal 
regulations at 30 CFR part 948 to codify decisions concerning the West 
Virginia program. In accordance with the Administrative Procedure Act 
(5 U.S.C. 553(d)(3)), this rule will take effect 30 days after the date 
of publication. Section 503(a) of SMCRA (30 U.S.C. 1253(a)) requires 
that a State program demonstrate that such State has the capability of 
carrying out the provisions of the Act and meeting its purposes. SMCRA 
requires consistency of State and Federal standards.

VI. Statutory and Executive Order Reviews

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This rule would not affect a taking of private property or 
otherwise have taking implications that would result in property being 
taken for government use without just compensation under the law. 
Therefore, a takings implication assessment is not required. This 
determination is based on an analysis of the corresponding Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget (OMB) will 
review all significant rules. Pursuant to OMB guidance, dated October 
12, 1993, the approval of state program amendments is exempted from OMB 
review under Executive Order 12866. Executive Order 13563, which 
reaffirms and supplements Executive Order 12866, retains this 
exemption.

Executive Order 13771--Reducing Regulation and Controlling Regulatory 
Costs

    State program amendments are not regulatory actions under Executive 
Order 13771 because they are exempt from review under Executive Order 
12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by section 3(a) of Executive Order 12988. The Department has determined 
that this Federal Register notification meets the criteria of Section 3 
of Executive Order 12988, which is intended to ensure that the agency 
reviews its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency writes its legislation and 
regulations to minimize litigation, and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because Section 3 focuses on the quality of Federal 
legislation and regulations, the Department limited its review under 
this Executive order to the quality of this Federal Register document 
and to changes to the Federal regulations. The review under this 
Executive order did not extend to the language of the State regulatory 
program or to the program amendment that the State of West Virginia 
drafted.

Executive Order 13132--Federalism

    This rule is not a ``[p]olicy that [has] Federalism implications'' 
as defined by Section 1(a) of Executive Order 13132 because it does not 
have ``substantial direct effects on the States, or on the distribution 
of power and responsibilities among the various levels of government.'' 
Instead, this rule approves an amendment to the West Virginia program 
submitted and drafted by that State. We reviewed the submission with 
fundamental federalism principles in mind as set forth in Sections 2 
and 3 of the Executive order and with the principles of cooperative 
federalism, as set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). 
Specifically, pursuant to Section 503(a)(1) and (7)(30 U.S.C. 
1253(a)(1) and (7)), we reviewed the program amendment to ensure that 
it is ``in accordance with'' the requirements of SMCRA and ``consistent 
with'' the regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175, and have determined that it has no substantial 
direct effects on federally recognized Tribes or on the distribution of 
power and responsibilities between the Federal Government and Tribes. 
Therefore, consultation under the Department's tribal consultation 
policy is not required. The basis for this determination is that our 
decision is on the West Virginia program, which does not include Tribal 
lands or regulation of activities on Tribal lands. Tribal lands are 
regulated independently under the applicable, approved Federal program.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking 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 
a significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

Executive Order 13045--Protection of Children From Environmental Health 
Risks and Safety Risks

    This rule is not subject to Executive Order 13045 because this is 
not an economically significant regulatory

[[Page 12744]]

action as defined by Executive Order 12866; and this action does not 
address environmental health or safety risks disproportionately 
affecting children.

National Environmental Policy Act

    Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 
1251(a) and 1292(d), respectively) and the U.S. Department of the 
Interior Departmental Manual, part 516, section 13.5(A), state program 
amendments are not major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) (15 U.S.C. 3701 et seq.) directs us to use voluntary 
consensus standards in our regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. (OMB 
Circular A-119 at p. 14). This action is not subject to the 
requirements of section 12(d) of the NTTAA because application of those 
requirements would be inconsistent with SMCRA.

Paperwork Reduction Act

    This rule does not include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to OMB under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required.

Regulatory Flexibility Act

    This rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject 
of this rule, is based upon corresponding Federal regulations for which 
an economic analysis was prepared and certification made that such 
regulations would not have a significant economic effect upon a 
substantial number of small entities. 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 corresponding 
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 on an analysis of the 
corresponding Federal regulations, which were determined not to 
constitute a major rule.

Unfunded Mandates Reform Act

    This rule will not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. This determination 
is based on an analysis of the corresponding Federal regulations, which 
were determined not to impose an unfunded mandate. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 11, 2019.
Thomas D. Shope,
Regional Director, North Atlantic--Appalachian Region.

    Editorial note: This document was received for publication by 
the Office of the Federal Register on February 20, 2020.

    For the reasons set out in the preamble, 30 CFR part 948 is amended 
as set forth below:

PART 948--WEST VIRGINIA

0
1. The authority citation for part 948 continues to read as follows:

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


0
2. Section 948.15 is amended by adding the entry ``W.Va. Code 22-3-
11(g) and (h) (qualified) W. Va. Code 22-3-20 W. Va. Code 22-3-21 CSR 
110-29-1 through 6, Special Reclamation Tax Credit Rule (qualified)'' 
to the table in chronological order by ``Date of publication of final 
rule'' to read as follows:


Sec.  948.15  Approval of West Virginia regulatory program amendments.

* * * * *

------------------------------------------------------------------------
                                     Date of
 Original amendment submission    publication of    Citation/description
             dates                  final rule
------------------------------------------------------------------------
 
                              * * * * * * *
August 14, 2013...............  March 4, 2020....  W.Va. Code 22-3-11(g)
August 7, 2014................                      and (h) (qualified)
                                                    W.Va. Code 22-3-20,
                                                    W. Va. Code 22-3-21,
                                                    CSR 110-29-1 through
                                                    6, Special
                                                    Reclamation Tax
                                                    Credit Rule
                                                    (qualified).
------------------------------------------------------------------------

[FR Doc. 2020-03751 Filed 3-3-20; 8:45 am]
BILLING CODE 4310-05-P