Virginia Regulatory Program, 85838-85851 [2023-27105]

Agencies

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

[Federal Register Volume 88, Number 236 (Monday, December 11, 2023)]
[Rules and Regulations]
[Pages 85838-85851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27105]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[SATS No. VA-127-FOR; Docket ID: OSM-2015-0003; S1D1S SS08011000 
SX064A000 223S180110; S2D2S SS08011000 SX064A000 22XS501520]


Virginia Regulatory Program

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

ACTION: Final rule; approval of amendment with deferrals.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving, with two deferrals, an amendment to the 
Virginia regulatory program (the Virginia program) under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). This 
amendment includes revisions to Virginia's statutes and/or coal mining 
regulations that: remove self-bonds from the types of performance bond 
instruments authorized; adjust the financing of its alternative bonding 
system (ABS), which is in the form of a bond pool; and revise proof of 
publication requirements involving permit applications and bond release 
applications. We are deferring our decision on the removal of a 
regulation requiring certain actions by self-bonded operators when a 
condition affects their financial status and the proposed monetary cap 
on Virginia's pool bond fund.

DATES: The effective date is January 10, 2024.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Castle, Acting Field 
Office Director, Charleston Field Office. Telephone: (859) 260-3900, 
Email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the Virginia Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision

[[Page 85839]]

VI. Statutory and Executive Order Reviews

I. Background on the Virginia Program

    A. Background--General: Subject to OSMRE's oversight, 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 Federal regulations. See 30 U.S.C. 
1253(a)(1) and (7). On the basis of these criteria, the Secretary of 
the Interior conditionally approved the Virginia program on December 
15, 1981. You can find background information on the Virginia program, 
including the Secretary's findings, the disposition of comments, and 
conditions of approval of the Virginia program in the December 15, 
1981, Federal Register (46 FR 61088). You can also find later actions 
concerning Virginia's program and program amendments at 30 CFR 946.12, 
946.13, and 946.15. With this amendment, Virginia is requesting changes 
to the bonding program we previously approved as described below.
    B. Background--Virginia's Bonding Program: SMCRA section 509, 
Performance Bonds, 30 U.S.C. 1259, and the Federal regulations at 30 
CFR part 800, Bond and Insurance Requirements for Surface Coal Mining 
and Reclamation Operations under Regulatory Programs, prescribe the 
minimum bonding requirements for filing and maintaining bonds and 
insurance for coal mining and reclamation operations under regulatory 
programs. We approved Virginia's initial bonding provisions under its 
regulatory program on September 21, 1982 (47 FR 41557). We have 
approved other revisions to Virginia's bonding program, including those 
published on January 18, 1983 (48 FR 2123), February 28, 1983 (48 FR 
8271), December 27, 1983 (48 FR 56949), December 31, 1987 (52 FR 
49403), February 2, 1990 (55 FR 3588), August 5, 1991 (56 FR 37153), 
and May 29, 2012 (77 FR 31486).
    Virginia's bonding program is authorized under Title 45.1 of the 
Code of Virginia, Chapter 19, Virginia Coal Surface Mining Control and 
Reclamation Act of 1979 (VACSMCRA), Article 2, Regulation of Mining 
Activity, and Article 5, Coal Surface Mining Reclamation Fund, and 
implemented through its regulations at Title 4, Conservation and 
Natural Resources, of the Virginia Administrative Code. Virginia's 
bonding program includes provisions involving self-bonds and an 
alternative bonding system in the form of a bond pool, both subjects of 
this document, as summarized below.
    1. Virginia's Bonding Program Options: Virginia's program includes 
two options for permittees to post a performance bond:
    a. Full-Cost Bond: If a permittee elects not to participate in the 
bond pool or does not qualify to become a participant in the pool, the 
permittee is required to submit an adequate full-cost bond for each 
bonded area covering the entire (full) cost of reclamation for coal 
mining operations. The various types of performance bonds permitted by 
Virginia to satisfy full-cost bond requirements include: surety bonds; 
collateral bonds (including certificates of deposit and letters-of-
credit); escrow accounts; combined surety/escrow accounts; a 
combination of these bonding methods; and self-bonds, which Virginia 
has stopped accepting in anticipation of our approval of this 
amendment. The amount is dependent upon the reclamation requirements of 
the approved permit and associated reclamation plan cost estimate. In 
no case may the total bond initially posted for the entire area under 
one permit be less than $10,000.
    b. Alternative Bonding System (ABS): In lieu of requiring each 
permittee to submit permit-specific full-cost performance bonds for 
every coal mining operation, Virginia has an ABS in the form of a bond 
pool. (In Virginia this is referred to as the Pool Bond Fund, but to 
maintain consistency with our nomenclature in State Program Amendments 
and other OSMRE literature, we will refer to it as the ``bond pool'' or 
``bond pool fund'' unless we are specifically referencing the text of 
Virginia statutes or regulations.) The ABS is designed to provide 
funding, if necessary, to carry out reclamation plan requirements in 
the event of forfeiture. Participation in the ABS is voluntary and 
requires an operator to submit an application to participate. 
Acceptance into the bond pool is based on the applicant's financial 
standing and reclamation record. Other restrictions apply, including 
those involving a review of ownership, control, and violation history.
    Further, in order to participate in the ABS, an operator must post 
an underlying financial security in the form of a performance bond. The 
performance bond can be in the form of any bond type approved by 
Virginia. The amount of the underlying financial security is determined 
by the greater of either a per-acre sum or a stated minimum, but is not 
tied to the estimated cost of reclamation. This underlying financial 
security results in a bond calculation that is less than the amount 
required under a full-cost bond, which considers the estimated cost of 
reclamation in its calculation.
    Various sources of funding make up the bond pool fund account (an 
interest-bearing account referred to as the Coal Surface Mining 
Reclamation Fund or the ``Fund''), which is used to supplement the 
underlying financial security. These sources include entrance fees, a 
reclamation tax based upon coal production, special assessments, 
interest, and civil penalty collections. Before 2014, the reclamation 
tax was collected from Fund participants commencing with and running 
from the date of the coal production, processing, or loading from those 
operations under a permit for a period of one year. When the quarterly 
Fund balance (including interest earned) was less than $1.75 million, 
participants paid the following amounts on a quarterly basis into the 
Fund according to the type of permit: $0.04/ton of coal extracted/
produced for surface mining; $0.03/ton for deep mining; and $0.015/ton 
for preparation or loading facilities. When any quarterly Fund balance 
was greater than $2 million, payments would cease until any quarterly 
Fund balance was less than $1.75 million. The Fund is used for the 
following purposes only: (1) reclaiming permit areas covered by the 
Fund in the event of bond forfeiture (after the underlying financial 
security is used); and (2) covering administrative costs of the Fund. 
The Fund is administered by the Virginia Department of Mines, Minerals 
and Energy (DMME), now known as the Virginia Department of Energy (see 
section II, Submission of the Amendment, indicating that we will 
continue to refer to DMME for the purpose of this amendment to maintain 
consistency with the provisions Virginia submitted). As of August 31, 
2021, the Fund had a balance of approximately $10,688,000.
    Virginia's Reclamation Fund Advisory Board (RFAB), previously known 
as the Pool Bond Fund Advisory Committee (PBFAC), consists of five 
members and is responsible for formulating recommendations to 
Virginia's Director of the DMME (the Director) concerning oversight of 
the general operation of the Fund. The RFAB reports biannually to the 
Director and to the Governor on the status of the Fund and makes 
recommendations to the Director involving regulations or changes for 
the administration or operation of the Fund.

[[Page 85840]]

The Director has the discretion to adopt the recommendations of the 
RFAB through regulatory action.
    2. Self-Bond: Before 2014, Virginia's program accepted self-bonds 
(a bond without separate surety) as the financial security for full-
cost bonds and bonds under the bond pool. In 2014, through legislative 
action, Virginia ceased accepting self-bonds as an acceptable form of 
bond for new permits and new increments as discussed in section II of 
this document. As of August 31, 2021, there are 20 permits with some 
form of self-bonding, with 19 of these permits using self-bonds to meet 
the minimum bonding required to participate in the bond pool. These 19 
permits use self-bonds to cover reclamation costs before the Fund would 
need to provide additional funding for reclamation efforts. These self-
bonds are held by one operator/permittee.
    3. Virginia Action following OSMRE Review of the Virginia Bonding 
Program: In response to our January 22, 2011, report summarizing our 
review of Virginia's full-cost bonding program (Administrative Record 
No. VA 2037), Virginia sent us a letter dated February 10, 2011 
(Administrative Record No. VA 2038), announcing its plans to initiate a 
risk assessment review of its ABS that would be conducted by a neutral 
third party. Virginia procured actuarial services from Pinnacle 
Actuarial Resources, and the company submitted its final report to 
Virginia on May 29, 2012 (Pinnacle Report), recommending changes to the 
ABS to keep it financially sound (Administrative Record No. VA 2022).
    C. Background--Proof of Publication: As part of our oversight role, 
we reviewed Virginia's permitting process for permit renewal 
applications and, in a September 2014 report entitled Processing of 
Permit Renewal Applications, noted that following the required public 
advertisement that an application had been submitted, proof that those 
advertisements had been published either were not being submitted or 
were not being made part of the application package within four weeks 
after the last date of publication, as required by Virginia's 
regulations. We recommended Virginia consider revising its regulations 
so that Virginia's electronic permitting process does not violate 
Virginia's approved program (Administrative Record No. VA 2044).

II. Submission of the Amendment

    Following the 2012 actuarial review of the ABS and to improve the 
operation of the ABS, in March 2014, Virginia enacted Senate Bill 560 
(S.B. 560) and House Bill 710 (H.B. 710) to amend certain provisions of 
the VACSMCRA. See 2014 Va. Acts chs. 111, 135. The enactment of this 
legislation effected the following changes to VACSMCRA: (1) it removed 
an applicant's ability to submit its own bond without separate surety, 
thereby removing the self-bonding option; and (2) it revised the ABS by 
changing the parameters of entrance fees and reclamation tax payments. 
Virginia now seeks to amend its program to reflect these changes to 
VACSMCRA, as codified through revised statutes in Title 45.1, Chapter 
19 of the Code of Virginia (Virginia Code or Va. Code) and changes to 
its implementing regulations at Title 4, Agency 25, Chapter 130 of the 
Virginia Administrative Code (VAC).
    By letter dated June 12, 2015, Virginia sent us an amendment to its 
program under SMCRA (Administrative Record No. VA 2024). With this 
amendment, Virginia seeks to revise Va. Code 45.1-241, 45.1-270.3, and 
45.1-270.4, as amended by 2014 Va. Acts chs. 111, 135 (Administrative 
Record No. VA 2021). Virginia also seeks to revise its administrative 
regulations at Title 4 of the VAC that involve the option to self-bond 
and the ABS fees and taxes.
    In addition to the revisions to Virginia's bonding program, 
Virginia also seeks to revise its permitting regulations by modifying 
its procedures related to the submission of proof that public notice 
had been published in a newspaper of general circulation for permit 
applications and bond release applications. Virginia also proposed 
certain non-substantive editorial statutory and regulatory revisions 
that involve clarification of syntax, renumbering of paragraphs, and 
reference changes, but do not change the administrative regulations 
substantively. The full text of the program amendment is available at 
www.regulations.gov, searchable by the Docket ID Number referenced at 
the top of this document.
    We announced receipt of the proposed amendment in the October 22, 
2015, Federal Register (80 FR 63933) (Administrative Record No. VA 
2026). In the same document, we opened the public comment period and 
provided an opportunity for a public hearing or meeting on the adequacy 
of the amendment. The public comment period ended on November 23, 2015. 
On November 17, 2015, we received a letter from an organization 
requesting an extension to the public comment period (Administrative 
Record No. 2027). We granted that request in a letter dated November 
20, 2015 (Administrative Record No. VA 2028), reopened the public 
comment period, and announced the extension in the February 8, 2016, 
Federal Register (81 FR 6479) (Administrative Record No. VA 2029). The 
public comment period ended on March 9, 2016. No request for public 
hearing was received. Public comments that were received are addressed 
in the Public Comments section of this document.
    In a letter dated October 24, 2016, Virginia clarified that while 
the submission included a revision that removed escrow bonds from its 
approved list of types of acceptable performance bond at 4 VAC 25-130-
800.23, it was not their intent to do so. (Administrative Record No. VA 
2040). Therefore, escrow bonds are not being addressed in this 
document.
    In a letter dated April 24, 2017, Virginia notified us of a change 
affecting its initial submission (Administrative Record No. VA 2041). 
The original submission included changes to the reclamation tax 
payments under Va. Code 45.1-270.4, Assessment of Reclamation Tax 
Revenues for Fund, which were initially set to expire on July 1, 2017. 
See Enactment 2 of 2014 Va. Acts chs. 111, 135. After submitting the 
amendment, Virginia enacted H.B. 2200, repealing the expiration date 
and thereby making the 2014 changes permanent. See 2017 Va. Acts Ch. 7. 
We base our findings on the permanent status of the 2014 statutory 
revisions at Va. Code 45.1-270.4.
    Most recently, during a 2021 special legislative session, the 
Virginia legislature enacted Senate Bill 1453 (S.B. 1453) (approved 
March 24, 2021) and House Bill 1855 (H.B. 1855) (approved April 7, 
2021). These bills amended the Virginia Code to, among other things, 
rename the Department from the ``Department of Mines Minerals and 
Energy'' to the ``Department of Energy,'' and recodify and reorganize 
Virginia's mining laws from Title 45.1, Mines and Mining, to Title 
45.2, Mines, Minerals, and Energy, effective October 1, 2021. See 2021 
Va. Acts, Sp. S. I, chs. 387, 532; see also Va. Code 45.2-1000--45.2-
1051 (recodification of VACSMCRA). Virginia has not requested that 
OSMRE review 2021 Va. Acts, Sp. S. I, chs. 387, 532. This notification 
of our approval of certain amendments to Virginia's regulatory program 
pertains only to the identified changes to Virginia's program reflected 
in 2014 Va. Acts chs. 111, 135 and 2017 Va. Acts Ch. 7 and does not 
address the 2021 enactment. For that reason, and for the sake of 
clarity, this document will refer to provisions of VACSMCRA as they 
were codified before October 1, 2021. For reference, Va. Code 45.1-241, 
-270.3, and -270.4 discussed in this document now appear

[[Page 85841]]

at Va. Code 45.2-1016, -1045, and -1046, respectively.

III. OSMRE's Findings

    The following are the findings we made concerning the amendment 
under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We 
are approving the amendment, with deferrals, as described below.

A. Performance Bonds: Self-Bonding

    Virginia seeks to revise the following statutory and regulatory 
provisions related to self-bonding.
    1. Revised Statutes at Title 45.1 of the Virginia Code: Substantive 
changes to VACSMCRA as amended by 2014 Va. Acts chs. 111, 135 that 
involve self-bonding are described along with our findings.
    a. Va. Code 45.1-241, Performance Bonds: Virginia seeks to revise 
subsection C of this section, which addresses the type of performance 
bond acceptable to ensure that reclamation is completed during and 
after mining activities. The first sentence, which Virginia seeks to 
delete, allowed the operator to submit a self-bond without a separate 
surety when the applicant could meet certain requirements. The 
requirements involved demonstrating the existence of a suitable agent 
to receive service of process and a history of financial solvency and 
continuous operation. This revision eliminates the self-bonding 
provision of the law that was originally approved on December 27, 1983.
    b. Va. Code 45.1-270.3, Initial Payments into Fund; Renewal 
Payments; Bonds: Virginia seeks to delete subsection C, which addresses 
the acceptance of a performance bond submitted without separate surety 
(self-bond) for underground mining and surface mining operations 
covered by the ABS.
    2. Revised Regulations at Title 4 of the Virginia Administrative 
Code (VAC): Virginia requests the following deletions from DMME's 
administrative regulations at Chapter 130, Coal Surface Mining 
Reclamation Regulations. Virginia states that the deletions in Chapter 
130 reflect the deletion of the statutory provisions at Va. Code 45.1-
241 and 45.1-270.3 relating to self-bonding.
    a. 4 VAC 25-130-700.5, Definitions: Virginia seeks to delete the 
definitions of ``cognovit note,'' ``indemnity agreement,'' and ``self-
bond'' to reflect the proposed deletion of the self-bonding provisions 
under 4 VAC 25-130-801 and Va. Code 45.1-241.C and 45.1-270.3, as 
described above.
    b. 4 VAC 25-130-800.12, Form of the Performance Bond: We note that 
Virginia included 4 VAC-25-130-800.12 as part of the original 
submission but did not indicate any revision at this section. Virginia 
later confirmed its intent to remove subparagraph (f) (self-bond) from 
the list of prescribed types of allowable performance bond, reflecting 
the proposed deletion of the self-bonding provisions of VACSMCRA.
    c. 4 VAC 25-130-801.12, Entrance Fee and Bond: Virginia seeks to 
delete subsections (c) and (d) to reflect the proposed deletion of the 
self-bonding provisions of VACSMCRA.
    Subsection (c) provides that Virginia may accept the bond of an 
applicant of an underground mining operation without surety as provided 
by 4 VAC 25-130-801.13 upon a showing of an applicant's worth 
equivalent to $1 million and certified by an independent certified 
public accountant (CPA) initially and annually.
    Subsection (d) provides that Virginia may accept the bond of an 
applicant of a surface mining operation or associated facility without 
separate surety if certain conditions are met (e.g., establishment of a 
suitable agent for service of process, satisfactory continuous 
operation and financial solvency, and submission of an indemnity 
agreement).
    d. 4 VAC 25-130-801.13, Self-bonding: Virginia seeks to delete this 
section to reflect the proposed deletion of the self-bonding provisions 
of VACSMCRA.
    Subsection (a) prescribes the requirements to designate a suitable 
agent for service of process, provide the name and address of the CPA 
who prepared the statement of the applicant's net worth, and provide 
the location of the financial records that were used for the CPA's 
statement. In addition, it provides the requirements for submitting an 
acceptable cognovit note.
    Subsection (b) prescribes the requirement to provide evidence 
indicating a history of satisfactory continuous operation and financial 
solvency.
    Subsection (c) requires that the CPA certification be updated to 
reflect prior obligations and self-bonding liabilities still in effect 
whenever a Fund participant applies for additional permit(s).
    Subsection (d) requires that whenever the conditions upon which the 
self-bond was approved no longer prevail, Virginia must require the 
posting of a surety or collateral bond before coal surface mining 
operations may continue. The permittee is responsible to immediately 
notify DMME of any change in total liabilities or total assets which 
would jeopardize the support of the self-bond. If permittees fail to 
have sufficient resources to support the self-bond, they are deemed to 
be without bond coverage and in violation of bond requirements.
    OSMRE's Finding: Section 509(c) of SMCRA and its implementing 
regulations at 30 CFR 800.4(d), Regulatory Authority Responsibilities; 
800.5, Definitions; 800.12, Form of the Performance Bond; and 800.23, 
Self-bonding, permit a regulatory authority to accept different forms 
of performance bonds, including self-bonds, as a mechanism to ensure 
that funds will be available for completion of the reclamation plan if 
the work has to be performed by the regulatory authority in the event 
of a forfeiture. The regulatory authority may accept a self-bond 
without separate surety when the applicant demonstrates, to the 
satisfaction of the regulatory authority, 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 such amount.
    Changes in the coal market and coal mining industry have resulted 
in changes to the financial solvency of some coal companies and have 
highlighted the need to ensure adequate financial assurance exists to 
ensure the reclamation of disturbed mine lands. Therefore, it is 
prudent that Virginia examined its financial assurance program and 
reconsidered the types of performance bonds it will accept as a 
reclamation guarantee. While SMCRA authorizes a regulatory authority to 
accept a self-bond as financial assurance, it does not require a 
regulatory authority to do so. SMCRA provides a regulatory authority 
with discretion to implement more stringent requirements, such as 
implementing a financial assurance program that requires more security 
than that provided through a self-bond. We have determined that the 
elimination of self-bonding through deletions from sections 45.1-241 
and 45.1-270.3 of VACSMCRA does not make the Virginia program less 
stringent than SMCRA or less effective than the Federal regulations. 
Therefore, we approve these changes.
    We note this amendment requests the deletion of the definition of 
cognovit note, at 4 VAC 25-130-700.5, Definitions, which we previously 
approved for deletion under Virginia's Program Amendment No. VA-126 on 
May 29, 2012. See 77 FR 31486, 31488. In that same document, we 
approved Virginia's definition of indemnity

[[Page 85842]]

agreement, noting that the Federal regulations did not define the term, 
but that Virginia's definition was consistent with how the Federal 
regulations used the term in the definitions of surety bond, collateral 
bond, and self-bond under 30 CFR 800.5. See id. at 31488. Therefore, we 
also see no effect to Virginia's program from removing the definition 
of the term indemnity agreement and approve its deletion. Regarding the 
deletion of the term self-bond, we are approving the removal of this 
definition because it is consistent with Virginia's request, and our 
approval, of the elimination of self-bonds as a financial assurance 
mechanism, thereby rendering the definition unnecessary. To the extent 
that some self-bonded operations remain in Virginia following this 
amendment, we consider any operative portions of these defined terms to 
be ``conditions upon which the self-bond was approved'' under 4 VAC 25-
130-801.13(d), explained below, and therefore to still apply to 
existing self-bonded operations subsequent to their deletion. Regarding 
the deletion of 4 VAC 25-130-800.12(f), 801.12(c) and (d), and 
801.13(a)-(c), we have determined that the changes to the VAC reflect 
changes to VACSMCRA that remove self-bonding from the Virginia program 
as described above. For the same reasons, the regulatory changes do not 
render the Virginia program less stringent than SMCRA or less effective 
than the Federal regulations, and so we are approving these changes.
    We are not approving the removal of 4 VAC 25-130-801.13(d) at this 
time. This subsection requires the permittee to promptly notify 
Virginia of any condition affecting the permittee's financial status 
and prescribes the subsequent action to be taken when such conditions 
exist. Because some operators remain self-bonded, Virginia's request 
that the entire section on self-bonding be removed would mean that 
there would not be any regulations in place to address the action the 
operator or regulatory authority must take should a self-bonded 
permittee become insolvent or file for bankruptcy. The Federal 
regulations at 30 CFR 800.23(g) require that if, at any time during the 
period when a self-bond is posted, the financial conditions of the 
applicant or non-parent corporate guarantor change so that the 
conditions upon which the self-bond was approved no longer apply, the 
permittee must notify the regulatory authority immediately and post an 
alternate form of bond in the same amount as the self-bond within 90 
days after notification. If an adequate bond is not posted by the end 
of the period allowed, the permittee must cease coal extraction and 
comply with the provisions of 30 CFR 800.16(e). Paragraph (e)(2) of 30 
CFR 800.16 requires that in the event of bankruptcy, the permittee must 
be deemed to be without bond coverage and must be required to replace 
bond coverage within 90 days. If an adequate bond is not posted by the 
end of the 90-day period, the permittee is subject to the provisions of 
30 CFR 816.132 or 817.132, which address cessation of operations 
(temporary and permanent). Mining operations must not resume until the 
regulatory authority has determined that an acceptable bond has been 
posted. Subsection (d) of 4 VAC 801.13, which Virginia seeks to delete, 
addresses the situation mentioned above. Without this subsection, there 
would not be any regulation that provides for immediate and corrective 
action, which would render Virginia's administrative regulations less 
effective than 30 CFR 800.23(g) and its related regulations.
    We have determined that the subsection 4 VAC 25-130-801.13(d) 
cannot be removed until all previously approved self-bonds have either 
been: (1) lawfully released based on an accurate determination that the 
permittee has satisfactorily completed all reclamation obligations; or 
(2) replaced with an adequate substitute bond or set of bonds, each of 
which is backed by a qualified surety, adequate cash deposit, qualified 
government securities, qualified bank instruments, or an adequate 
combination of these forms of financial assurance/bond. Therefore, we 
are not approving the removal of subsection (d) at this time.

B. Alternative Bonding System (ABS): Entrance Fees, Reclamation Taxes, 
and Fund Balance Determinations

    1. Revised Statutes at Title 45.1 of the Virginia Code: Substantive 
changes to VACSMCRA, as amended by 2014 Va. Acts chs. 111, 135 and 2017 
Va. Acts Ch. 7, that involve the ABS (e.g., entrance fees, reclamation 
taxes, and Fund balance determinations) are described along with our 
findings.
    a. Va. Code 45.1-270.3, Initial Payments into Fund; Renewal 
Payments; Bonds: Virginia seeks to revise subsection A, which addresses 
entrance fee requirements for surface mining permittees participating 
in the Fund. Subsection A was revised to remove the references to 
subsections B and C of Va. Code 45.1-270.4, Assessment of Reclamation 
Tax Revenues for Fund. Subsections B and C of Va. Code 45.1-270.4 
prescribe the Fund balance conditions upon which a reclamation tax will 
be collected from operators. Previously, the Fund balances used for 
determining the amounts of the entrance fees under Va. Code 45.1-
270.3.A were the same as those used for determining the amount of 
reclamation taxes under Va. Code 45.1-270.4.B and C. The entrance fee 
payments and reclamation tax assessment were based on the same minimum 
and maximum balance limits of the Fund; the entrance fee or reclamation 
tax would be increased if the Fund was less than $1.75 million, and the 
entrance fee would be reduced and the reclamation taxes assessment 
would cease if the Fund balance was greater than $2 million. However, 
since Virginia is changing the limits for reclamation tax assessment to 
$20 million, discussed in section B.1(b) below, the references to the 
tax limits at subsections B and C of Va. Code 45.1-270.4 no longer 
apply. Virginia is deleting the references to the tax limits at 
subsections B and C of Va. Code 45.1-270.4 while retaining the $1.75 
million and $2 million Fund balances used to determine the amount of 
the entrance fee.
    Virginia also seeks to revise subsection A to add paragraphs (1) 
and (2) (which previously appeared under Va. Code 45.1-270.4.C), 
specifying how the Fund balance must be calculated. Under these 
paragraphs, planned expenditures are deducted from the Fund balance at 
the time the engineering cost estimate is prepared, and, if the actual 
expenditures are less than the engineering cost estimate, an adjustment 
(credit) is made to the Fund.
    OSMRE's Finding: The deletion of cross-references to subsections B 
and C of Va. Code 45.1-270.4 does not change the entrance fee set forth 
in Va. Code 45.1-270.3 as we last approved it on February 2, 1990 (55 
FR 3588), and has no effect on Virginia's program. Therefore, we are 
approving the deletions. Regarding the addition of paragraphs (1) and 
(2), we have determined that these are the same provisions we approved 
when they existed under section 45.1-270.4.C. See 52 FR 49403 (December 
31, 1987). Moving these paragraphs to section 45.1-270.3.A has no 
substantive effect on implementation. Therefore, we are approving these 
additions.
    b. Va. Code 45.1-270.4, Assessment of Reclamation Tax Revenues for 
Fund: Virginia seeks to revise subsections B and C to: (1) delete the 
$1.75 million Fund balance threshold, below which the reclamation tax 
would be imposed on operators until the Fund reached $2 million; (2) 
delete the $2 million Fund balance threshold, above which the

[[Page 85843]]

reclamation tax would cease until the Fund balance fell below $1.75 
million; and (3) in place of these thresholds, Virginia seeks to revise 
subsections B and C to add a new Fund balance threshold of $20 million 
(herein referred to as a ``cap''), below which the reclamation tax 
would be imposed on operators, and above which the reclamation tax 
would cease. Further, these subsections were also changed to clarify 
that the Fund balance will be determined at the end of ``each'' 
calendar quarter, not ``any'' calendar quarter as previously provided, 
and delete paragraphs related to the calculation of the Fund balance, 
which are moved to Va. Code 45.1-270.3.A as summarized at section 
B.1.a. above. Virginia also seeks to delete a provision from subsection 
D that limits the collection of the reclamation tax to only the first 
year of commencement of coal production, processing, or loading from 
those operations covered under the permit, in effect imposing the 
reclamation tax for the duration of operations subject only to the Fund 
balance threshold of $20 million.
    OSMRE's Finding: Section 509(c) of SMCRA provides that we may 
approve a regulatory authority's ABS if it will achieve the objectives 
and purposes of the bonding program. Under SMCRA's implementing 
regulations, set forth at 30 CFR 800.11(e), an ABS must: (1) assure 
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) provide a substantial economic incentive for the 
permittee to comply with all reclamation provisions. The changes 
submitted by Virginia alter its existing ABS's ability to ensure the 
availability of sufficient money to complete reclamation.
    First, we caution that a bond pool, particularly in an uncertain 
coal market, brings inherent risks to participating permittees and to 
Virginia. If the number of bond pool members and the amount of coal 
produced in Virginia decline, the production fees placed on coal being 
produced will need to rise correspondingly to maintain a financially 
sound and stable bond pool fund. Second, we focused our findings on the 
review of the provisions of the ABS and Virginia's ability to assure 
the objectives and purposes of the system are capable of being met. The 
actuarial recommendations were considered as part of the review. 
Subsequent oversight reviews of the ABS will be necessary to determine 
whether or not the ABS meets the provisions of 30 CFR 800.11(e), 
including the changes approved with this amendment. Our findings of the 
changes to the Virginia Code related to reclamation tax collection and 
limits follow:
     Balance Threshold: Regarding the reclamation tax 
assessment limits at Va. Code 45.1-270.4.B, we have determined that the 
deletion of the $1.75 million and $2 million Fund balance thresholds is 
a reasonable change to the ABS. Both SMCRA and the Federal regulations 
at 30 CFR 800.11(e)(1) require that sufficient money be available to 
complete the reclamation plan for any areas which may be in default at 
any time, if reclamation must be completed by the regulatory authority. 
Deleting the $1.75 million and $2 million Fund thresholds increases the 
amount of funds available to complete the reclamation plan for any 
areas which may be in default at any time for permits that are bonded 
under the ABS system. Therefore, this deletion is consistent with 30 
CFR 800.11(e)(1), and we are approving it.
     Fund Cap: Virginia indicates that a $20 million cap on the 
Fund to determine reclamation tax payments, is considered a sufficient 
amount to support a system capable of providing sufficient resources to 
supplement any site specific underlying financial security that is held 
in the event of forfeiture at any given time. However, Virginia has not 
provided a justification for its determination of the cap amount or 
articulated a reasonable connection between its establishment and the 
amount of reclamation for which it is providing security. Neither SMCRA 
nor its implementing regulations allow regulatory authorities to set 
arbitrary limits on the amount of money to be made available for that 
purpose. Approving such a cap would not assure that the ABS will have 
available sufficient money to complete the reclamation plan for any 
areas which may be in default at any time and would be inconsistent 
with 30 CFR 800.11(e)(1); therefore, we are deferring our decision on 
the provisions of sections 45.1-270.4.B and C to the extent that they 
impose a cap of $20 million. We are approving the continuing collection 
of the tax beyond $2 million but deferring our decision on the 
cessation of the tax collection when the Fund reaches $20 million until 
such time as Virginia either takes legislative action to remove the cap 
from this statute or demonstrates that $20 million is a sufficient 
amount of money to complete the reclamation, including water treatment, 
on any area covered by the Fund. Our deferral has the effect of 
removing the cap upon the amount of money that can be in the Fund at 
any given time and will remain in effect until Virginia makes that 
demonstration.
     One-Year Period: With regard to subsection D, we find 
removing the limitation for collecting reclamation taxes for a one-year 
period is prudent because it should increase monies deposited into the 
Fund and is consistent with the Pinnacle Report recommendation and the 
requirements of 30 CFR 800.11(e)(1). Therefore, we are approving this 
deletion.
    2. Revised Regulations at Title 4 of the Virginia Administrative 
Code (VAC): Virginia seeks to make the following changes to Chapter 130 
of DMME's administrative regulations.
    a. 4 VAC 25-130-801.11, Participation in the Pool Bond Fund: 
Virginia seeks to delete this section, stating that the section is 
duplicated under revised statutory provisions.
    Subsection (a) provides for voluntary participation in the Fund for 
a permittee that can demonstrate at least a three-year history of 
compliance under the Act or any other comparable State or Federal Act.
    Subsection (b) requires all participants in the Fund pay entrance 
fees as required by 4 VAC 25-130-801.12(a) and comply with the 
applicable parts of Va. Code 45.1-241.
    Subsection (c) requires an irrevocable commitment by the permittee.
    Subsection (d) provides that all fees and taxes are nonrefundable.
    Subsection (e) permits the use of monies from the interest accrued 
to the Fund, as provided by Va. Code 45.1-270.5(B), to support one 
position for the administration of the Fund. If one position is deemed 
insufficient to ensure proper administration of the Fund, Virginia can 
obtain additional assistance if the Reclamation Fund Advisory Board 
concurs.
    OSMRE's Finding: We have determined that 4 VAC 25-130-801.11 
subsection (a) is duplicated at Va. Code 45.1-270.2.A; subsection (b) 
is duplicated at Va. Code 45.1-270.3; and subsection (c) is duplicated 
at Va. Code 45.1-270.2.B. These provisions are unnecessary to give 
effect to the statutory requirements, and therefore we approve their 
deletion. Subsection (d) is not specifically duplicated in the Virginia 
Code, however, the requirements of Va. Code 45.1-270.2.B provide that 
participation in the Fund requires an irrevocable commitment on part of 
the permittee. This commitment involves the payment of fees and taxes; 
therefore, we have determined that the deletion of this subsection does 
not alter the program requirements.
    Regarding subsection (e), we note that while the administrative 
regulation

[[Page 85844]]

provides specifically that one administrative position is to be funded, 
Va. Code 45.1-270.5.B provides more generally that the interest accrued 
from the Fund may be used to properly administer the Fund. We also note 
that 4 VAC 25-130-801.11(e) references the PBFAC, which was replaced by 
the RFAB in 1985. Given that there are no counterpart Federal 
regulations that determine the manner in which the administration of an 
ABS is to be funded, and the revision merely removes a discretionary 
limitation on the Fund's administration, we have determined that the 
deletion of 4 VAC 25-130-801.11(e) does not render the program 
inconsistent with SMCRA or the implementing regulations and we are 
approving the deletion.
    b. 4 VAC 25-130-801.12, Entrance Fee and Bond: Virginia seeks to 
revise subsection (a) by deleting the provisions that require an 
entrance fee of $5,000 when the total balance of the Fund is determined 
to be less than $1.75 million, an entrance fee of $1,000 when the total 
Fund balance is greater than $2 million, and a renewal fee of $1,000 
from all permittees in the Fund at the time of renewal. Virginia seeks 
to delete these provisions, stating that they are duplicative of 
statutory provisions under Va. Code 45.1-270.3.
    Virginia also seeks to delete subsection (g), which requires that, 
if a mining operation is to be in temporary cessation for more than six 
months, mining operators must post bond equal to the total estimated 
cost of reclamation for all portions of the permitted site which are in 
temporary cessation prior to the date on which the operation has been 
in temporary cessation for more than six months. This subsection 
provides additional time to post bond for operations that were in 
temporary cessation as of July 1, 1991. It also provides that the 
amount of the bond required for each area bonded is determined by DMME 
in accordance with 4 VAC 25-130-800.14 and remains in effect throughout 
the remainder of the period during which the site is in temporary 
cessation. When the site returns to active status, the bond posted 
would be released, provided the permittee had posted bond pursuant to 
subsection (b) of this section.
    OSMRE's Finding: With regard to 4 VAC 25-130-801.12 subsection (a), 
we note that this regulation is duplicated at Va. Code 45.1-270.3.A and 
is not necessary to give effect to the statutory requirement; 
therefore, we are approving its deletion. With regard to subsection 
(g), we note that the regulation is duplicated in the statute at Va. 
Code 45.1-270.3.E, with the exception of the provision that states that 
the amount of the bond required for each permit area bonded under this 
subsection must be determined by DMME in accordance with 4 VAC 25-130-
800.14. The provisions at 4 VAC 25-130-800.14, Determination of Bond 
Amount (used for full-cost bond permits), require the following: 
subsection (a) requires bond calculations be determined considering the 
reclamation plan and the estimated cost of reclamation; subsection (b) 
requires a minimum bond of $10,000; and subsection (c) provides that 
liability insurance may be used to repair material damage resulting 
from subsidence.
    Va. Code 45.1-270.3.E requires full cost bond for these areas until 
the operation is back in active status and the operator can demonstrate 
alternative bonding requirements are met. The remainder of the approved 
Virginia program would still be relevant in determining the proper 
amount of full-cost bonding. Therefore, the specific reference to 4 VAC 
25-130-800.14 being deleted by this revision to 4 VAC 25-130-801.12 
does not affect the Virginia program as we have already approved it. 
Therefore, we are approving this deletion.
    c. 4 VAC 25-130-801.14, Reclamation Tax: Virginia seeks to delete 
this section, stating that these provisions are duplicated in revised 
statutory provisions.
    Subsection (a) provides that if, at the end of any calendar 
quarter, the total balance of the Fund (including interest) is less 
than $1.75 million, the reclamation tax assessment will be imposed. The 
reclamation tax amounts are provided as $.04/ton for surface mining 
operations; $.03/ton for underground mining; and $.015/ton for coal 
processing or preparation facilities, and are due within 30 days after 
the end of each taxable calendar quarter.
    Subsection (b) provides that if, at the end of any calendar 
quarter, the total balance of the Fund (including interest) exceeds $2 
million, payments will be deferred until required by subsection (a).
    Subsection (c) provides that no permittee is required to pay the 
reclamation tax on more than 5 million tons produced per calendar year, 
regardless of the number of permits held by the permittee, except as 
provided in subsection (e).
    Subsection (d) applies to permittees holding more than one type of 
permit and the amount of reclamation tax to be paid in such situations. 
It provides that any permittee holding more than one type of permit 
will not pay more than $.055/ton on coal originally surface mined by 
that permittee or $.045/ton of coal originally deep mined (underground 
mined) by that permittee. It also provides that for permittees holding 
one permit upon which coal is both mined and processed or loaded, the 
permittee will not pay more than the tax applicable to the surface or 
underground mining operation. However, the permittee must pay $.015/
clean coal ton for all coal processed and/or loaded at the permit which 
originated from other permits during the calendar quarter.
    Subsection (e) provides that the reclamation tax is required during 
the one-year period commencing with and running from the date of 
commencement of coal production, processing, or loading from the 
permit.
    OSMRE's Finding: We note that subsection (a) is duplicated at 
proposed Va. Code 45.1-270.4.A and B; subsection (b) is duplicated at 
Va. Code 45.1-270.4.C; and subsections (c) and (d) are duplicated at 
proposed Va. Code 45.1-270.4.D (which will be re-lettered from existing 
section 45.1-270.4.E). Subsection (e) is duplicated at existing Va. 
Code 45.1-270.4.D (which is proposed to be deleted). We note that the 
following sentence appears in the regulations under subsection (d)(2) 
but does not appear in the statute: ``However, the permittee shall pay 
the one and one-half cents per clean ton for all coal processed and/or 
loaded at the permit which originated from other permits during the 
calendar quarter.'' We understand from Virginia's submission that this 
provision duplicates Virginia's statutes, including its current 
interpretation and implementation of the statutes, and therefore the 
deletion of this sentence would not affect Virginia's current 
implementation of its program. We also note that there are no 
counterpart Federal regulations that direct the way a state's ABS is to 
be funded. To the extent that the deletion of this sentence would cause 
Virginia to collect the reclamation tax in a different manner, our 
review would occur in the course of our oversight of the adequacy of 
the ABS system as a whole. For these reasons, deletion of 4 VAC 23-130-
801.14 does not render the remaining Virginia provisions inconsistent 
with SMCRA or the Federal regulations and we are approving the deletion 
in its entirety.
    d. 4 VAC 25-130-801.16, Reinstatement to the Pool Bond Fund: 
Virginia seeks to delete this section, stating that it duplicates the 
revised statutory provisions.

[[Page 85845]]

    Subsection (a) involves the consequences of an operator's default 
on any reclamation obligation that causes the Fund to incur reclamation 
expenses. The permittee will no longer be eligible to participate in 
the Fund for any new permit or any permit renewal thereafter until full 
restitution for such default has been made to the Fund. The Director, 
along with the recommendation from the PBFAC (which was later replaced 
by the RFAB but not updated in this regulation), may require that the 
person seeking reinstatement pay interest at the composite rate 
determined by the Treasurer of Virginia compounded monthly.
    Subsection (b) requires compliance with subsection (a) before 
seeking new permits or renewal of existing ones.
    OSMRE's Finding: We note that subsections (a) and (b) are 
duplicated at Va. Code 45.1-270.6.A, with two exceptions: (1) 
subsection (a) provides that the permittee will not be eligible to 
participate in the bond pool for any new permit or any permit renewal, 
whereas the statutory provisions do not mention permit renewal; and (2) 
subsection (a) provides the Director of DMME discretion to impose an 
interest payment upon the permittee if approved by the PBFAC, whereas 
the statutory provisions do not.
    Regarding the regulation's reference to permit renewal, the statute 
at Va. Code 45.1-270.6.A states in relevant part: ``An operator who has 
defaulted on any reclamation obligation and has thereby caused the Fund 
to incur reclamation expenses as a result thereof shall not be eligible 
to participate in the Fund thereafter until restitution for such 
default has been made.'' (emphasis added). Moreover, Va. Code 45.1-
270.2 provides, in relevant part, that: ``Commencement of participation 
in the Fund, as to the applicable permit, shall constitute an 
irrevocable commitment to participate therein as to the applicable 
permit and for the duration of the coal surface mining operations 
covered thereunder.'' We interpret this statutory language to bar all 
operators who trigger this condition from participation in the Fund, 
whether their permits are new or up for renewal, and any operator who 
defaults on a reclamation obligation and causes the Fund to incur 
expenses resulting therefrom is obligated to make restitution before a 
permit renewal can be approved. Therefore, Virginia's proposal to 
delete 4 VAC 25-130-801.16(a) has no effect on Virginia's program.
    Regarding interest payments, we note that Va. Code 45.1-270.6.A 
requires restitution by operators before they may be reinstated as a 
Fund participant. We understand from Virginia's submission that this 
provision duplicates Virginia's statutes, including its current 
interpretation and implementation of the statutes, and therefore the 
deletion of this sentence would not affect Virginia's current 
implementation of its program seeking interest as part of restitution 
to the Fund. We also note that there are no counterpart Federal 
regulations that direct the manner in which a state would seek such 
restitution. To the extent that the deletion of this sentence would 
cause Virginia to collect less restitution by omitting interest, just 
as it could currently at the Director's discretion, our review would 
occur in the course of our oversight of the adequacy of the ABS system 
as a whole. For these reasons, the deletion of 4 VAC 25-130-801.16 does 
not render the Virginia program inconsistent with SMCRA, and we are 
approving the deletion in its entirety.

C. Public Participation and Proof of Publication Language Referenced in 
the State Regulations

    In response to our 2014 review findings, Virginia seeks to revise 
requirements related to the timing of an applicant's submission to DMME 
of proof that it had published public notice of its exploratory permit 
applications, mining permit-related applications, and bond release 
applications referenced in 4 VAC 25-130-772.12, 778.21, and 800.40. In 
its submission, Virginia stated that these provisions are being revised 
to coincide with corresponding Federal regulations.
    Virginia proposes to revise its regulations by removing the 
timeframe within which a copy of the required newspaper announcement or 
proof of publication must be filed with DMME. Rather than requiring 
proof of publication within four weeks of the date of publication, the 
revised regulations will require the applicant to submit proof of 
publication with a subsequent submittal related to the permit 
application. The following sections related to proof of publication of 
notice for exploratory permit applications, mining permit-related 
applications, and bond release applications are affected by this 
change:
    1. Coal Exploration--4 VAC 25-130-772.12, Permit Requirements for 
Exploration Removing more than 250 Tons of Coal or Occurring on Lands 
Designated as Unsuitable for Surface Coal Mining Operations: While the 
change was not specifically described in its submission, a comparison 
of its existing regulation to its revised regulation shows that 
Virginia seeks to revise subsection (c)(1) of this section to reflect 
the change noted above: removing the requirement that proof of 
publication be submitted within four weeks from the date of 
publication, and instead requiring such proof to be made part of a 
subsequent submittal related to the permit application prior to 
approval.
    OSMRE's Finding: We have determined that this change does not 
render Virginia's program less stringent than the section 512 of SMCRA 
or less effective than the Federal regulations at 30 CFR 772.12. In 
promulgating the public participation process for coal exploration 
permits in Sec.  772.12, we explained that exploration permits 
generally do not have as adverse an impact on the environment as 
surface mining, and therefore there can be more flexibility in the 
public participation requirements. See 48 FR 40622, 40628 (September 8, 
1983). For that reason, Sec.  772.12 provides no requirement to submit 
a copy of the newspaper advertisement or proof of publication to the 
regulatory authority for coal exploration permits. Therefore, 
Virginia's requirement to submit proof of publication is more stringent 
than Federal requirements, and we approve the change.
    2. Surface Mining--4 VAC 25-130-778.21, Proof of Publication: 
Virginia seeks to revise this section to reflect the change noted 
above. As we stated in our 2014 report, we recommended Virginia 
consider changing its regulations so that its use of its new electronic 
permitting process does not cause a violation of the program. The 
electronic permitting process altered the manner in which the State 
transmitted its comments on an application to the applicant and the 
manner in which the applicant could submit its responses to the State. 
DMME's electronic permitting process requires all submissions, which 
include responses to its comments and items like proof of publication, 
to be included in one zip file to avoid piecemeal review and revision 
of the application. DMME does not accept receipt of any items submitted 
outside this format or individually. During our review we found that 
this process creates an obstacle for the permittee's submittal of the 
proof of publication within four weeks after the date of last 
publication as required by Virginia's regulations. This practice 
resulted in over half of the sampled applications in the review not 
meeting Virginia's four-week timeframe. Virginia states it would not be 
feasible to keep the current requirement that proof of publication be 
submitted within four weeks after the last date of publication due to 
fact that the application, the contents of which must

[[Page 85846]]

be kept together in one zip file, may be anywhere in the electronic 
process. Therefore, the requirement of submitting the proof of 
publication in the next subsequent electronic submission after the last 
date of publication, but prior to approval, is the option that best 
accommodates Virginia's electronic permitting system.
    OSMRE's Finding: Unlike the proof of public notice requirements for 
coal exploration permit applications, the Federal regulations at 30 CFR 
778.21, Proof of publication, require that the copy of the 
advertisement or proof of publication be submitted within four weeks 
after the last date of publication. The requirement to submit proof of 
publication was intended to aid in determining whether applicants 
complied with the requirement to publish public notice in a local 
newspaper of general circulation in the locality of the proposed 
operation and was initially proposed to require that proof of 
publication be submitted within one week after the last date of 
newspaper publication. See 43 FR 41662, 41693 (September 18, 1978). 
Based on public comment over the concern that delays occur in 
applicants receiving proof of publication from publishers, we adopted 
the commenter's suggestion that proof of publication be submitted 
within four weeks, accepting the commenter's reasoning that four weeks 
would be a reasonable length of time that would not unduly delay the 
application process. See 44 FR 14902, 15026 (March 13, 1979).
    Based on this regulatory history of 30 CFR 778.21, we have 
determined that the change at 4 VAC 25-130-778.21 does not render 
Virginia's program less effective than the Federal regulations. 
Virginia's revision only relates to the length of time that may elapse 
before DMME receives proof that an applicant has complied with its duty 
to publish public notice. The revision does not relieve an applicant of 
its duty to publish the notice in a timely fashion, nor does it affect 
the public's opportunity to participate in the permit application 
process. Moreover, Virginia's revision does not unduly delay the permit 
review process. We understand that electronic permitting is designed to 
improve the permitting process by reducing administrative delays that 
existed in the conventional process and making public participation 
more accessible. To the extent that these improvements require greater 
flexibility regarding the time in which an applicant can submit proof 
of publication to DMME, prior to final action on the application, the 
proposed revision is no less effective than the Federal regulations, 
and we approve this change.
    3. Bond Release: 4 VAC 25-130-800.40, Requirements to Release 
Performance Bonds: Virginia seeks to revise this section, which 
addresses public notice and proof of publication requirements for bond 
release applications and other documents required to be submitted with 
the bond release application. Virginia seeks to redraft paragraph 
(a)(2) as two paragraphs, numbered paragraphs (a)(2) and (3), and 
renumber existing paragraph (a)(3) as paragraph (a)(4). Existing 
paragraph (a)(2) includes a combination of notice requirements: it 
requires that proof of publication of public notice be submitted within 
30 days after an application for bond release had been filed, specifies 
what information the public notice advertisement must contain and how 
and where it must be published, and requires that the applicant must 
submit copies of letters it is required to send to adjacent landowners 
and other enumerated parties. The revised paragraph (a)(2) addresses 
the advertisement and newspaper circulation requirements of the bond 
release application and what the advertisement should include. The 
revised paragraph also requires that the proof of publication be made 
part of a subsequent submittal after the last date of publication prior 
to approval, rather than within 30 days of submission of the 
application. New paragraph (a)(3) contains the requirement to submit 
copies of notice letters.
    OSMRE's Finding: For the same reason noted in our finding in C.3., 
above, we have determined that the change to the timeframe in which the 
applicant must submit proof of publication does not render Virginia's 
program less effective than the Federal regulations at 30 CFR 800.40, 
and the changes are therefore approved. The remaining changes only 
separate and rearrange existing language for clarity.

D. Editorial Changes

    Virginia also proposed certain editorial revisions, which include 
clarification of syntax, renumbering of paragraphs, and reference 
changes, but do not change the administrative regulations 
substantively. The editorial statutory changes are found in sections 
45.1-270.3 (clarification of syntax in subsection A and re-lettering of 
subsections D, E, and F) and 45.1-270.4 (clarification of syntax in 
subsections B and C and clarification of syntax and renumbering of 
subsection E). The editorial regulatory changes are found at 4 VAC 25-
130-801.12 (re-lettering of subsections (e) and (f)) and 4 VAC 25-130-
801.15 (clarification at subsection (a) and reference changes at 
subsections (b) and (d)). Because the changes in these sections are 
only editorial adjustments and corrections, we are approving them.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on two occasions. We announced receipt 
of the amendment and opportunity for public comment and/or hearing in 
the October 22, 2015, Federal Register (80 FR 63933) (Administrative 
Record No. 2026). We reopened the public comment period in the February 
8, 2016, Federal Register (81 FR 6479) (Administrative Record No. 2029) 
to afford the public more time to comment. The public comment period 
ended on March 9, 2016. On March 9, 2016, we received a combined 
response from The Southern Appalachian Mountain Stewards (SAMS) and 
Sierra Club (SC) (Administrative Record No. 2030). We received a letter 
dated March 9, 2016, which was signed by 1,185 private citizens 
(Administrative Record No. 2032). Identical form letters dated January 
14, 2016, through January 19, 2016, were received from 21 private 
citizens (Administrative Record No. 2031). No public hearing was 
requested.
    A. SAMS and SC Comments: The following summarizes the comments from 
the SAMS and SC.
    1. Public Participation Requirements: The commenters support the 
proposal to revise Virginia's public participation requirements to 
coincide with the Federal regulations but note that Virginia's 
submission includes descriptions of the revisions that are unhelpful, 
conclusory statements that do not explain the events or conditions that 
prompted the revisions, and how the revisions resolve those concerns. 
The commenters suggest requiring Virginia to provide a narrative 
description of each proposed program change, including the expected 
effect that the proposed change would have on the DMME's administration 
of the program. The commenters suggest that this would substantially 
assist members of the public in understanding the purpose and effect of 
the proposed changes.
    OSMRE's Response: As noted in OSMRE's findings under section C, 
Public Participation and Proof of Publication, the intent of the 
revisions was not to make Virginia's regulations coincide with 
corresponding Federal regulations. Nevertheless, Virginia's

[[Page 85847]]

revisions do not affect the public's opportunity to participate and 
allow the DMME to ensure that permit applicants comply with the 
requirement to publish notice of applications without unduly delaying 
the permit review process.
    2. Self-Bonding: The commenters support the proposal to repeal and 
rescind statutory and regulatory provisions that authorize Virginia to 
accept self-bonds. However, the commenters note that Virginia is not 
compelling operators that currently use self-bonding to transition to 
conventional financial assurances and further note that eliminating 
self-bonding by itself does not raise the assets in the bond pool fund. 
The commenters urge us to require Virginia to transition all existing 
self-bonds to conventional bonds. Alternatively, commenters state that 
if we determine that Virginia may continue to maintain existing self-
bonds, commenters oppose approval of the rescission of certain 
regulatory definitions and substantive requirements governing self-
bonds, unless and until Virginia certifies to us that every previously 
approved self-bond has either been: (1) lawfully released based on an 
accurate determination that the permittee has satisfactorily completed 
all reclamation obligations; or (2) replaced with an adequate 
substitute bond or set of bonds, each of which is backed by a qualified 
surety, adequate cash deposit, qualified government securities, 
qualified bank instruments, or an adequate combination of these forms 
of financial assurance. The commenters reference a settlement agreement 
between Virginia and a coal company that did not require the coal 
company to replace its self-bond with another form of performance bond.
    OSMRE's Response: We decline to require Virginia to transition 
existing self-bonds to conventional bonds because SMCRA affords the 
regulatory authority the discretion to accept different forms of 
performance bonds, including self-bonds, as a mechanism to ensure that 
funds will be available for completion of the reclamation plan if the 
work has to be performed by the regulatory authority in the event of a 
forfeiture. If we find, through our oversight activities, that a self-
bonded permittee no longer meets Virginia's program requirements, we 
can initiate appropriate action. Also, we recognize that eliminating 
self-bonding does not increase the assets in the bond pool fund. 
However, the elimination of future self-bonding decreases the potential 
liability to the Fund and is approved for that reason. We agree with 
the commenters' alternative suggestion to maintain certain provisions 
governing existing self-bonds. Our findings are under section A, 
Performance Bonds: Self-Bonding.
    3. Escrow Bonding: The commenters also note that Virginia proposes 
to rescind the administrative regulations that authorize and govern 
escrow bonding at 4 VAC 25-130-800.23 but has not proposed to remove 
the authorization in 4 VAC 25-130-800.12 (c), (d), and (e) of the use 
of escrow accounts as a form of performance bond. The commenters 
request that we require Virginia to rescind those provisions because 
with this amendment proposal, Virginia will no longer permit this type 
of bonding form.
    OSMRE's Response: Virginia clarified that it was not the State's 
intent to rescind the escrow bonding regulation.
    4. ABS: The commenters identified a number of risks associated with 
the solvency of the bond pool fund: inclusion of self-bonded 
operations, status of operations (e.g., the number of operations under 
temporary cessation, partial cessation, or ``active/not producing'' 
status), liability for sites that require water treatment, and decrease 
in Fund revenue because of a decline in coal production. The commenters 
recognize that the changes to Virginia's statutes and regulations 
governing the ABS would incrementally improve the system, but, 
according to the commenters, the changes are not enough to guarantee 
financial soundness of its ABS. The commenters' support is contingent 
on: (1) Virginia's presentation to us, on or before July 1, 2016, of a 
current, independent, professional actuarial report concerning the 
current solvency of the ABS that is based on complete data concerning 
current assets and liabilities of the Fund and a reasonable forecast of 
changes in assets and liabilities over the next five years; and (2) 
Virginia's adoption, on or before the close of the 2017 session of the 
Virginia General Assembly, of appropriate additional statutory and 
regulatory amendments that effectively implement each of the 
recommendations of the May 29, 2012 Pinnacle Report. The Pinnacle 
Report concluded that the primary risks to the Fund were the 
participation by companies, whether directly or through parent-
subsidiary relationships, that held multiple permits that could be 
forfeited simultaneously in the event of default, the number of self-
bonded permits, and that the risk of self-bonding was not reflected in 
the coal tax rate.
    The commenters also support their position by referencing our 
November 1990 report entitled ``Alternative Bonding Systems: An 
Analytical Approach and Identified Factors to Consider for Evaluating 
Alternative Bonding Systems'' (commenters refer to it as the ``ABS 
Memo'') and a letter from an internationally recognized actuarial 
consultant, Tillinghast, dated November 9, 1990 (commenters refer to it 
as the Tillinghast Letter). The commenters state that it is the only 
known criteria that we have endorsed related to the evaluation of an 
alternative bonding system.
    As the November 1990 report states, the analysis was conducted by 
an ad hoc committee whose purpose was to develop consistent 
considerations for evaluating an ABS. The report identifies factors 
which are recommended for use in analyzing and understanding the 
mechanisms for an ABS to operate as a solvent and legally sufficient 
system capable of complying with statutory and regulatory requirements. 
The considerations were developed through research and discussions with 
states and were supplemented with the advice of Tillinghast.
    The commenters refer to these guidelines as our stated criteria for 
evaluating an ABS and state that SMCRA requires us to evaluate each 
system on every occasion when the regulatory authority proposes to 
change it. Referring to those guidelines, the commenters had three 
areas of concern, which we will address below.
    a. Periodic Financial Soundness Reviews: The commenters state that 
both the Pinnacle Report and the OSMRE ABS Memo emphasize and/or 
recommend periodic financial soundness reviews. Accordingly, the 
commenters state that we should require an updated actuarial report on 
the solvency of the bond pool fund. The commenters suggest that a 
current actuarial report be required and should focus on, among other 
things, the risk posed by: mining permits held by companies currently 
in bankruptcy; mines in temporary cessation and those in active/non-
producing status; Virginia's reliance on its coal reclamation tax; coal 
production; Virginia's reclamation tax rate; DMME's lack of authority 
to impose one or more retroactive or special assessments in the future; 
and specific bonding requirements at Va. Code 45.1-270.2.D, 45.1-
270.30.D, 45.1-270.3.E, and 45.1-270.4.D, which limit the amount of tax 
collected from any individual operator. The commenters further request 
that the updated evaluation incorporate the risk analysis factors 
highlighted in the OSMRE ABS Memo. In particular, they point to the 
need to project the level of expenditures with respect to current,

[[Page 85848]]

projected, and incurred, but not reported liabilities and related 
costs. They contend the updated actuarial report must consider the 
forfeiture rate that would occur following the financial failure of 
most participating permittees in the ABS, including failures resulting 
in a severe economic downturn that could cause a failure of the 
industry.
    The commenters suggest that we should direct Virginia to consider, 
based on the results of the new actuarial study, eliminating the bond 
pool system entirely if financial distress in the coal mining industry 
continues. The commenters suggest individual surety bonds for the full 
reclamation amount offer the most reliable guarantee that funds will be 
available to carry out the reclamation required by SMCRA.
    OSMRE's Response: OSMRE's findings regarding Virginia's ABS are 
found under Section B. Alternative Bonding System (ABS): Entrance Fees, 
Reclamation Taxes, and Fund Balance Determinations. We agree with the 
commenters that Virginia has taken steps to improve its ABS. We rely on 
actuarial findings and recommendations as well as our oversight 
activities to assist us in our determination of whether the ABS is 
capable of satisfying the requirements of 30 CFR 800.11(e). However, we 
are not at this time requiring Virginia to adopt any particular 
recommendations from the Pinnacle Report. We recognize that actuarial 
recommendations are based on past history and forecasts and do not 
necessarily reflect current economic conditions and financial 
soundness. Our oversight activities will continue to focus on the 
solvency of the Fund, including the financial status of self-bonded 
permittees, and will evaluate Virginia's reporting on the solvency of 
the Fund accordingly.
    b. Authority to Adjust Fees and Taxes: The commenters state that 
they oppose, as a matter of administrative principle, the aspects of 
the proposed amendment to the ABS that commenters believe effectively 
rescind the authority of the DMME Director to promulgate regulations 
(effective only on our approval pursuant to 30 CFR 732.17(g)) that set, 
from time to time, specific entrance fees, renewal fees, reclamation 
tax rates, and special assessments in amounts that reasonably can 
assure the solvency of the ABS. Instead, the commenters state that we 
should require Virginia to expressly authorize the Director to 
promulgate regulations setting the amount or rate of such specific 
fees, above a set floor, so as to enable the Director to make timely 
adjustments that are or may become necessary to achieve or maintain 
solvency of the ABS. The commenters, citing the OSMRE ABS Memo, state 
that we have a duty to assure, as part of the consideration for 
approving an ABS, that any such system include ``legislative authority 
that allows the [regulatory authority] to adjust rates as needed to 
cover accountable liabilities.''
    OSMRE's Response: We have determined that Virginia's proposed 
changes do not rescind any authority from DMME to set fees. The 
authority provisions to which the commenters refer, principally 4 VAC 
25-130-801.12 and 801.14, merely duplicate the statutory fee 
requirements and do not grant DMME the independent authority to deviate 
from the fees set by the statute. Therefore, their rescission does not 
remove authority from DMME. The commenters' assertion that the OSMRE 
ABS Memo requires us to ensure that DMME, rather than the Virginia 
General Assembly, has the statutory authority to adjust fees is 
incorrect. The recommendation the commenters reference relates to 
elements that states should include in the narrative description of 
their ABS program only if their ABS program includes those elements, 
subject to legal restrictions that include those in the state 
constitution. Moreover, neither section 509(a) of SMCRA, nor the 
Federal regulations at 30 CFR 800.11(e), dictate how ABS systems must 
be funded. Therefore, we do not require state legislatures to grant 
regulatory agencies the authority to adjust fees and taxes because the 
states may choose to meet the requirements of SMCRA and its 
implementing regulations through other means. See, e.g., 66 FR 67446 
(December 28, 2001) (approving the creation of a Special Reclamation 
Fund Advisory Council that reports to the West Virginia Legislature and 
the Governor on the adequacy of the special reclamation tax set by 
statute). The recommendations in the OSMRE ABS Memo only suggest that 
if an ABS is funded a certain way, those elements should be included in 
the narrative submission.
    c. Fund Cap: The commenters support eliminating the $2 million Fund 
cap and increasing the Fund cap to $20 million because this change 
would allow additional money to accumulate to cover the potential 
liabilities of the Fund. However, the commenters note that Virginia has 
not demonstrated that $20 million would be sufficient to cover all of 
the potential liabilities to the Fund, especially in light of declining 
coal production and industry finances. The commenters suggest that 
Virginia follow the recommendation of the Pinnacle Report to repeal the 
Fund cap altogether, thereby allowing the Fund to continue growing.
    OSMRE's Response: We agree with the commenters that the $2 million 
Fund cap should be removed. We also agree with the commenters that 
Virginia has not demonstrated that $20 million would be sufficient to 
make Virginia's ABS solvent. Our findings regarding Virginia's ABS are 
found under section B, Alternative Bonding System (ABS): Entrance Fees, 
Reclamation Taxes, and Fund Balance Determinations.
    B. Private Citizen Comments: The following summarizes the comments 
that were received from private citizens.
    The commenters state that, in approving Virginia's regulations, we 
should consider the comments submitted by the SAMS and SC. They opine 
that although eliminating self-bonding is a good start, Virginia needs 
to do more to prevent the citizens from bearing the costs of mine clean 
up. They request that we advise Virginia that it needs to do more and 
undertake a new study that actually accounts for the effects of 
decreased coal production and mine operator insolvency and eliminate 
caps on its pooled reclamation fund.
    OSMRE's Response: We have considered the SAMS and SC's comments 
during the review process and have addressed future actuarial studies 
and the Fund caps. Our findings are located under section B, 
Alternative Bonding System (ABS): Entrance Fees, Reclamation Taxes, and 
Fund Balance Determinations. Virginia is aware of its responsibility to 
continually assess the status of its bonding program, specifically the 
solvency of the bond pool. We believe that, in managing the bond pool, 
Virginia will conduct a financial analysis of the bond pool using 
third-party actuarial studies as it deems necessary. In our oversight 
of the Virginia bonding program, particularly of the bond pool and its 
solvency, we will be reviewing how Virginia assesses and manages the 
bond pool. If in the future we determine that Virginia is not managing 
the bond pool program effectively, we will notify the State of our 
findings through the 732 processes for Virginia to undertake any 
corrective actions required.

Federal Agency Comments

    On June 23, 2015, under 30 CFR 732.17(h)(11)(i) and section 503(b) 
of SMCRA, we requested comments on the amendments from various Federal 
agencies with an actual or potential interest in the Virginia program 
(Administrative Record No. 2025). No Federal agency comments were 
received.

[[Page 85849]]

Environmental Protection Agency (EPA) Concurrence and Comments

    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 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 
June 23, 2015, under 30 CFR 732.17(h)(11)(i), we requested comments 
from the EPA (Administrative Record No. 2025). The EPA did not provide 
any comments.

State Historical 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 June 23, 2015, we requested comments from the Virginia 
Department of Historic Resources on Virginia's amendment 
(Administrative Record No. VA 2025). We did not receive any comments.

V. OSMRE's Decision

    Based on the above findings, we are approving Virginia's amendment 
that was submitted to us on June 12, 2015 (Administrative Record No. 
2024), with the following two deferrals:
    1. We are deferring our decision on the removal of 4 VAC 25-130-
801.13(d) of the self-bonding regulations until all previously approved 
self-bonds have either (1) been lawfully released based on an accurate 
determination that the permittee has satisfactorily completed all 
reclamation obligations, or (2) been replaced with an adequate 
substitute bond or set of bonds, each of which is backed by a qualified 
surety, adequate cash deposit, qualified government securities, 
qualified bank instruments, or an adequate combination of these forms 
of financial assurance.
    2. We are deferring our decision on the provisions of 45.1-270.4.B 
and C of the Virginia Code to the extent that they impose a cap of $20 
million. We are approving the continuing collection of the tax beyond 
$2 million but deferring our decision on the cessation of the tax 
collection when the Fund reaches $20 million until such time as 
Virginia either takes legislative action to remove the cap from this 
statute or demonstrates that $20 million is a sufficient amount of 
money to complete the reclamation, including water treatment, on any 
area covered by the Fund. Our deferral has the effect of removing the 
cap upon the amount of money that can be in the Fund at any given time 
and will remain in effect until Virginia makes that demonstration.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 946 that codify decisions concerning the Virginia 
program. In accordance with the Administrative Procedure Act, this rule 
will take effect 30 days after the date of publication.

VI. Statutory and Executive Order Reviews

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

    This rule would not effect a taking of private property or 
otherwise have taking implications that would result in public 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, 13563--Improving 
Regulation and Regulatory Review, and 14094--Modernizing Regulatory 
Review

    Executive Order 12866, as amended by Executive Order 14094, 
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 is exempted from OMB review under Executive Order 
12866, as amended by Executive Order 14094. Executive Order 13563, 
which reaffirms and supplements Executive Order 12866, retains this 
exemption.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by section 3 of Executive Order 12988. The Department determined that 
this Federal Register document meets the criteria of section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency write 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 amendment that Virginia drafted.

Executive Order 13132--Federalism

    This rule has potential federalism implications as defined under 
section 1(a) of Executive Order 13132. Executive Order 13132 directs 
agencies to ``grant the States the maximum administrative discretion 
possible'' with respect to Federal statutes and regulations 
administered by the States. Virginia, through its approved regulatory 
program, implements and administers SMCRA and its implementing 
regulations at the State level. This rule approves an amendment to the 
Virginia program submitted and drafted by the State, and thus is 
consistent with the direction to provide maximum administrative 
discretion to States.

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 the distribution of power and responsibilities 
between the Federal Government and Tribes. The basis for this 
determination is that our decision on the Virginia program does not 
include Indian lands, as defined by SMCRA, or regulation of activities 
on Indian lands. Indian lands are regulated independently under the 
applicable, approved Federal program. The Department's consultation 
policy also acknowledges that our rules may have Tribal implications 
where the State proposing the amendment encompasses ancestral lands in 
areas with mineable coal. We are currently working to identify and 
engage appropriate Tribal stakeholders to devise a constructive 
approach for consulting on these amendments.

[[Page 85850]]

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 
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 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 OSMRE to use voluntary 
consensus standards in its 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 the Office of 
Management and Budget 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 the Federal regulations that set minimum 
performance standards for alternative bonding systems 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 related Federal 
regulations.

Congressional Review 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 does 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 Federal regulations that set minimum 
performance standards for alternative bonding systems, 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 946

    Intergovernmental relations, Surface mining, Underground mining.

Thomas D. Shope,
Regional Director, North Atlantic-Appalachian Region.

    For the reasons set out in the preamble, 30 CFR part 946 is amended 
as follows:

PART 946--VIRGINIA

0
1. The authority citation for part 946 continues to read as follows:

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


0
2. Amend Sec.  946.12 by adding paragraph (d) to read as follows:


Sec.  946.12  State program provisions and amendments not approved.

* * * * *
    (d) We are not approving the following portions of provisions of 
the proposed program amendment that Virginia submitted on June 12, 
2015:
    (1) We are deferring our decision on the removal of 4 VAC 25-130-
801.13(d) of the self-bonding regulations until all previously approved 
self-bonds have either been lawfully released based on an accurate 
determination that the permittee has satisfactorily completed all 
reclamation obligations or replaced with an adequate substitute 
financial assurance under the approved Virginia regulatory program.
    (2) We are deferring our decision on the provisions of 45.1-270.4.B 
and C of the Virginia Code that address reclamation tax revenue to the 
extent that they impose a cap of $20 million. We are approving the 
continuing collection of the tax beyond $2 million but deferring our 
decision on the cessation of the tax collection when the Fund reaches 
$20 million until such time as Virginia either takes legislative action 
to remove the cap from this statute or demonstrates that $20 million is 
a sufficient amount of money to complete the reclamation, including 
water treatment, on any site covered by the Fund.

0
3. Amend Sec.  946.15 in the table by adding the entry ``June 12, 
2015'' in chronological order by ``Date of Final Publication'' to read 
as follows:


Sec.  946.15  Approval of Virginia regulatory program amendments.

* * * * *

[[Page 85851]]



----------------------------------------------------------------------------------------------------------------
  Original amendment submission
               date                    Date of final publication                 Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
June 12, 2015....................  December 11, 2023................  45.1-241.C (Performance Bonds), 45.1-270.3
                                                                       (Initial Payments into Fund; Renewal
                                                                       Payments; Bonds); and 45.1-270.4
                                                                       (Assessment of Reclamation Tax Revenue
                                                                       for Fund) (partial).
                                                                      4 VAC 25-130-700.5 (Definitions)
                                                                       ``indemnity agreement'' and ``self-bond''
                                                                       (deleted); 772.12 (Permit Requirements
                                                                       for Exploration Removing more than 250
                                                                       Tons of Coal or Occurring on Lands
                                                                       Designated as Unsuitable for Surface Coal
                                                                       Mining Operations); 778.21 (Proof of
                                                                       Publication); 800.12(f) (Form of the
                                                                       Performance Bond); 800.40(copyright) and
                                                                       (d) (Requirements to Release Performance
                                                                       Bonds); 801.11 (Participation in the Pool
                                                                       Bond Fund) (deleted); 801.12 (Entrance
                                                                       Fee and Bond); 801.13 (Self-bonding)
                                                                       (deleted); 801.14 (Reclamation Tax)
                                                                       (deleted); 801.15 (Collection of the
                                                                       Reclamation Tax and Penalties for Non-
                                                                       Payment); 801.16 (Reinstatement to the
                                                                       Pool Bond Fund) (deleted).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2023-27105 Filed 12-8-23; 8:45 am]
BILLING CODE 4310-05-P