AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Proposed rule; public comment period and opportunity for public hearing.

SUMMARY:

We, Office of Surface Mining Reclamation and Enforcement (OSMRE), are announcing receipt of a proposed amendment to the existing West Virginia Federal Lands Cooperative Agreement. Section 523(c) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act) and the Federal regulations authorize a State with an approved permanent regulatory program to enter into an agreement for the State regulation and control of surface coal mining and reclamation operations on Federal lands. West Virginia's existing cooperative agreement was adopted in February of 1984, between the State and the Secretary of the Interior (the Secretary), to allow the State administration of SMCRA on Federal lands within West Virginia under its approved permanent regulatory program (the West Virginia program). Since several years have passed since the original agreement was adopted, West Virginia is now proposing to amend the existing cooperative agreement to reflect the current statutory schemes, regulatory requirements, and agency responsibilities associated with the regulation of coal mining and reclamation activities on Federal lands. Additionally, the revised cooperative agreement would grant the State the authority to regulate all coal exploration activities on Federal lands, and would delegate the primary responsibility to review and approve coal mining permits involving federally and privately owned coal. This document gives the times and locations that the West Virginia program and this proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.

DATES:

We will accept written comments on this amendment until 4:00 p.m., E.S.T., August 19, 2020. If requested, we will hold a public hearing on the amendment on August 14, 2020. We will accept requests to speak at a hearing until 4:00 p.m., E.S.T. on August 4, 2020.

ADDRESSES:

You may submit comments, identified by SATS No. WV-120-FOR, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. The proposed rule has been assigned Docket ID OSM-2014-0006. Follow the instructions for submitting comments.
• Fax: (304) 347-7170.
• Mail/Hand Delivery: Mr. Ben Owens, Field Office Director, Pittsburgh Field Office, OSMRE, 3 Parkway Center South, 2nd Floor, Pittsburgh, PA 15220. Please include the rule identifier (WV-120-FOR; Docket ID OSM-2014-0006) with your written comments.

Instructions: All submissions received must include the agency name and docket number for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Comment Procedures” heading of the SUPPLEMENTARY INFORMATION section of this document.

Docket: For access to the docket to review copies of the West Virginia program, this amendment, a listing of any scheduled public hearings, and all written comments received in response to this document, you must go to the address listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting OSMRE's Charleston Field Office or the full text of the program amendment is available for you to read at http://www.regulations.gov.

Mr. Ben Owens, Pittsburgh Field Office Director, Office of Surface Mining Reclamation and Enforcement, 3 Parkway Center South, 2nd Floor, Pittsburgh, Pennsylvania 15220, Telephone: (412) 937-2827, Email: chfo@osmre.gov.

In addition, you may review a copy of the amendment during regular business hours at the following location:

Mr. Harold Ward, West Virginia Department of Environmental Protection, 601 57th Street SE, Charleston, West Virginia 25304, Telephone: (304) 926-0490, Email: harold.d.ward@wv.gov.

In addition, you may review a copy of the amendment during regular business hours at the following locations:

Office of Surface Mining Reclamation and Enforcement, Morgantown Area Office, 604 Cheat Road, Suite 150, Morgantown, West Virginia 26508, Telephone: (304) 291-4004 (By Appointment Only).

Office of Surface Mining Reclamation and Enforcement, Beckley Area Office, 313 Harper Park Drive, Suite 3, Beckley, West Virginia 25801, Telephone: (304) 255-5265.

FOR FURTHER INFORMATION CONTACT:

Mr. Ben Owens, Field Office Director, Pittsburgh Field Office, Office of Surface Mining Reclamation and Enforcement, Telephone: (412) 937-2827. Email: chfo@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the West Virginia Cooperative Agreement

II. Proposed Revisions to the Cooperative Agreement

III. Public Comment Procedures

IV. Statutory and Executive Order Reviews

I. Background on the West Virginia Cooperative Agreement

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 law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act . . .; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval, in the January 21, 1981, Federal Register (46 FR 5915). You can also find later actions concerning the West Virginia program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

West Virginia sent a request, received on August 26, 1981, proposing the existing Federal Lands Cooperative Agreement (herein referred to as the existing cooperative agreement) between the Department of the Interior and the State of West Virginia to give the State primacy and grant the ability to administer its approved regulatory program on Federal lands within West Virginia. West Virginia's existing cooperative agreement was approved on February 24, 1984, and the final rule was published in the March 9, 1984, Federal Register (49 FR 8913). The text of the existing cooperative agreement can be found at 30 CFR 948.30.

On August 5, 2014, the West Virginia Department of Environmental Protection (WVDEP) submitted a proposed, revised cooperative agreement (herein referred to as the revised agreement) to address several changes that have occurred since the existing cooperative agreement was adopted. (Administrative Record No. WV-1599). After expressing an interest in revising the agreement in 2009, WVDEP collaborated with OSMRE's Charleston Field Office (CHFO) before it submitted a final draft of the revised agreement.

The provision for amending cooperative agreements is found in 30 CFR 745.14. This provision provides that a cooperative agreement, which has been approved pursuant to 30 CFR 745.11, may be amended by mutual agreement of the Secretary and of the Governor of a State.

Amendments to a cooperative agreement must be adopted by Federal rulemaking in accordance with 30 CFR 745.11. Sections 745.11(b)(1) through (8) require that certain information be submitted with a request for a cooperative agreement if the information has not previously been submitted in the State program. The information relating to the budget, staffing, organization and duties of the State regulatory authority, WVDEP, was submitted when West Virginia requested its existing cooperative agreement. See 49 FR 8913.

OSMRE has determined that this information satisfies the requirements for the proposed amendments to the cooperative agreement, and no additional information is needed. A written certification from the West Virginia Attorney General was also included in the State's request for its existing cooperative agreement. The Attorney General concluded that no State statutory, regulatory or other legal constraint exists which would limit the capability of the State to fully comply with section 523(c) of the Act, as implemented by 30 CFR part 745.

OSMRE is seeking comments on the proposed revisions to the existing cooperative agreement. If the amendment is deemed as sufficient, it will become part of the West Virginia program.

II. Proposed Revisions to the Cooperative Agreement

Through this proposed rulemaking, West Virginia seeks to revise the outdated contents of its existing cooperative agreement. As the existing cooperative agreement does not contemplate the State's desire to regulate coal exploration activities and assume responsibility for approving coal mining permits involving federally leased coal, the revised agreement would authorize the State regulation of these activities. Under the revised agreement, the State would be primarily responsible for reviewing and approving coal mining permits involving federally and privately owned coal, as well as regulate all surface coal mining and reclamation operations on Federal lands within West Virginia. As a result, upon approval of the revised agreement, OSMRE would no longer be responsible for approving permits on Federal lands involving federally leased coal and would instead function solely in its oversight capacity to ensure the State complies with the West Virginia program and the terms of the revised cooperative agreement. The revised agreement would further clarify the requirements, procedures, and responsibilities of the State, OSMRE, the Secretary, and the other Federal agencies affected by such operations conducted on Federal lands.

As discussed and summarized below, the revised agreement would include a more in-depth discussion of the agency duties regarding permit application review, permit revisions or renewals, agency coordination, bonding, and transfer, assignment, or sale of permit rights. The revised agreement would incorporate the Bureau of Land Management (BLM) responsibilities under the Mineral Leasing Act of 1920 (MLA) for lands involving leased Federal coal and would include a new Article to address areas unsuitable for mining, valid existing rights (VER), and compatibility determinations reserved for the Secretary and non-delegable to the State.

A summary of the proposed changes to the existing cooperative agreement is provided below. For convenience, the existing Article is provided alongside the corresponding proposed revised Article. These proposed revisions are subject to further changes because of public comments and further discussions with West Virginia. The full text of the terms of the proposed cooperative agreement, as submitted, is also provided.

Cooperative Agreement

The proposed revisions to the introductory language concern non-substantive wording or editorial changes.

Existing Article I: Introduction, Purpose and Responsible Administrative Agency

Proposed Revised Article I: Introduction, Purposes, and Responsible Agencies

Article I would be retitled to read: Article I: Introduction, Purposes, and Responsible Agencies.

Under paragraph A. Authority, the statement “including surface operations and surface impacts incident to underground mining operations” is added for clarity. The language would be revised in paragraph A to (1) reference to activities reserved for BLM such as the ability to lease Federal coal subject to 43 CFR part 3400, subparts 3480 through 3487; (2) explain that the State regulation will be conducted in a manner consistent with SMCRA, the Federal lands program pursuant to 30 CFR parts 740, 745, and 746, and the approved West Virginia program; and (3) delegate authority to the State to review and approve coal exploration activities on Federal lands within West Virginia.

Paragraph B. Purposes would be revised for editorial purposes and to incorporate the changes that have occurred in regards to agency structure.

Paragraph C. Responsible Administrative Agencies would be revised to more accurately reflect the current agency structure and responsibilities. These revisions would change the name of the State agency with authority to regulate coal mining in West Virginia and would authorize WVDEP to administer the cooperative agreement on behalf of the Governor, instead of the Department of Natural Resources, Reclamation Division (DNR), as the existing cooperative agreement provided.

Existing Article II: Effective Date

Proposed Revised Article II: Effective Date

The proposed revisions to Article II concern non-substantive wording or editorial changes.

Existing Article III: Definitions

Proposed Revised Article III: Definitions

Article III would be revised to expand the list of definition sources, originally listing 30 CFR parts 700, 701, and 740, and the State program, to incorporate SMCRA, 30 CFR 700.5, 701.5 and 740.5, the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA), the Office of Explosives and Blasting, and the rules and regulations promulgated pursuant to those Acts. Moreover, the proposed revisions would add a new paragraph to resolve instances where a conflict occurs between State and Federal definitions, stating that the definitions used in the approved State program will apply with exception to the definition of “valid existing rights” which will use the Federal VER definition.

Existing Article IV: Applicability

Proposed Revised Article IV: Applicability

The language in Article IV would be revised to clarify that although the laws, regulations, terms and conditions of the West Virginia program are applicable to Federal lands in the State through the cooperative agreement, certain authority or responsibilities are reserved and cannot be delegated to the State as the regulatory authority. Existing language would be revised to include additional current statutory and regulatory references that are relevant, but are not presently included. The proposed revisions would remove from the existing cooperative agreement a statement that the terms of the agreement do not apply to operations on Federal lands that contain leased Federal coal. Under the revised agreement, WVDEP would be primarily responsible for regulating coal mine sites which may involve federally owned coal, which will be discussed further below.

The revised agreement would list the State Surface Mine Board, rather than the State of West Virginia's Reclamation Board of Review as provided in the existing cooperative agreement, as the appropriate entity to receive appeals of orders and decisions issued by WVDEP.

Existing Article V: Requirements for Cooperative Agreement

Proposed Revised Article V: General Requirements

Article V would be retitled to read: Article V: General Requirements. Paragraph A. Authority of State Agency would be revised to list WVDEP as the appropriate State agency to carry out the terms of the cooperative agreement. Proposed revisions to paragraph B. Funding would provide WVDEP the necessary funds to cover the full cost incurred by the State in carrying out its responsibilities under the agreement. However, the proposed revision would also include the proviso, “provided that such cost does not exceed the estimated cost the Federal Government would have expended on such responsibilities in the absence of this Agreement.”

Paragraph C. Reports and Records would be revised to require the State, pursuant to 30 CFR 745.12(d), to report its compliance with the cooperative agreement to OSMRE on a more frequent basis.

Paragraphs D. Personnel and E. Equipment and Facilities would continue to require the State to provide the necessary personnel and access to facilities in order to implement the agreement. However, the revised agreement would make the existing personnel and facilities requirements contingent upon adequate appropriations and grant awards. Under the revised agreement, paragraph E would be retitled: E. Equipment and Facilities.

Paragraph F would be revised to read: F. Permit Application Fees and Civil and Criminal Penalties and would incorporate coal exploration application fees. Paragraph F, as revised, would require civil and criminal penalties and fines collected from operations on Federal lands to be deposited in the State's Special Reclamation Fund and Special Reclamation Water Trust Fund and would allow the State to consider all permit application fees collected as program income to be retained by the State and deposited within WVDEP's Mining and Reclamation Operation Fund. Additionally, the existing requirement to submit a financial status report pursuant to 30 CFR 735.26 would be revised to require that the State report the permit fee, penalty, and fine amounts collected from operations on Federal lands during the prior grant year.

Existing Article VI: Review of a Permit Application Package

Proposed Revised Article VI: Review of Permit Application

Article VI would be retitled to read: Article VI: Review of Permit Application. Article VI would be revised to update the procedures, responsibilities of each agency, and agency coordination associated with permitting on Federal lands. Under the revised agreement, WVDEP would be responsible for reviewing and approving coal mining permits involving federally and privately owned coal as well as the authority to regulate all surface coal mining and reclamation operations on Federal land. The revised agreement would provide a more thorough outline of the specific duties assigned to the State or Federal agency for permitting actions, including the agency responsibilities and review procedures for operations involving Federal surface and leased Federal coal.

The proposed revisions would add paragraph A. Responsibilities. As established in the existing cooperative agreement, WVDEP would continue to hold the primary responsibility for reviewing and approving the permit application package. However, the revised paragraph A would identify BLM as the agency responsible for matters that concern Federal coal leases issued under mineral leasing laws which exclusively fall under 43 CFR part 3400 of the Federal regulations. In instances where the operation involves leased Federal coal, the revised agreement would require OSMRE to prepare a mining plan decision document and obtain approval from the Secretary. OSMRE would be required to consult and seek concurrence from BLM, the Federal land management agency, and other Federal agencies in order to determine the appropriate mining plan recommendation for the Secretary.

The proposed revisions would set forth the Secretary's reserved right to carry out certain responsibilities, and act independently of WVDEP, pursuant to laws other than SMCRA. The revised agreement would provide a clear depiction of the Secretary's responsibilities, outlined in 30 CFR 740.4(a), that cannot be delegated to the State under the Federal lands program, the MLA, NEPA, this proposed revised cooperative agreement, and other applicable Federal laws. However, the revised paragraph A would explain that the Secretary's authority to make certain determinations under SMCRA that cannot be delegated to WVDEP, but may be delegated to OSMRE. Although OSMRE retains responsibilities under NEPA, the revised paragraph A would specify that OSMRE may request the State's assistance in preparing documents for NEPA compliance. The revised agreement would enable OSMRE and the State, with the concurrence of other Federal agencies involved, to delegate additional responsibilities to WVDEP under other applicable Federal laws by establishing a working agreement.

The proposed addition of paragraph B. Submission of Permit Application would continue to set forth similar permit application submission procedures as those provided under paragraph A. Contents of Permit Application Package of the existing cooperative agreement, but would incorporate coal exploration operations on Federal lands. The proposed paragraph B would additionally require applicants to satisfy the 30 CFR 740.13(b) requirements, which set forth the information required for a permit package, submission procedures, and other permit requirements. If OSMRE is regulating or processing existing or pending permit applications on Federal lands before the revised cooperative agreement is effective, paragraph B would allow the State to request that OSMRE continue its responsibility for those permits. While regulating or processing those applications, OSMRE may, however, pass its additional responsibilities to the State under the terms of the revised agreement, along with any resulting attendant fees, fines or civil or criminal penalties.

The revised agreement would add paragraph C. Review Procedures to provide a more extensive description of agency responsibilities during permit review. The proposed paragraph C would require OSMRE and WVDEP to develop a work plan and permit application review schedule, incorporating the timeframes established by the approved State program. In addition to agency coordination procedures, the paragraph C would require OSMRE to provide the State with its comments on the application as well as any requirements for additional data, within 45 days of receiving the administratively complete permit application. OSMRE would coordinate the resolution of conflicts between WVDEP and other Federal agencies to assist the State in carrying out its responsibilities.

The proposed, revised agreement would add paragraph D. Review Procedures Where There is Federal Surface, but No Leased Federal Coal Involved to clarify that WVDEP will be responsible for reviewing permit applications for operations on Federal lands that do not involve leased Federal coal and do not require a mining plan.

The revised agreement would add paragraph E. Review Procedures Where Federal Surface and Leased Federal Coal Is Involved. Paragraph E would allow OSMRE to delegate its obligations under 30 CFR 740.4(c)(1) through (4), (6), and (7), thereby authorizing WVDEP to issue permitting decisions for operations on Federal land, review exploration operations not subject to 43 CFR part 3400, and assist OSMRE in the preparation of NEPA documents. After consulting the appropriate agency, the revised agreement would also enable the State to approve and release bonds and determine the post-mining land use. The proposed addition to paragraph E would also require BLM to notify WVDEP of its leasing actions and provide a copy of the decision.

Paragraph F. [WV]DEP, OSMRE, and Other Federal Agency Coordination would be added under the revised agreement, to reiterate the agency coordination required when Federal leased coal is involved. In addition to discussing WVDEP's responsibility to consult with BLM and the Federal land management agency when the proposed permit application involved leased Federal coal, WVDEP would be responsible for seeking comments from other agencies with jurisdiction over Federal lands affected by the proposed operation. Under the proposed paragraph F, the State would be able to request Federal agencies to provide their comments and findings to WVDEP within 45 calendar days after receipt of the permit application. Pursuant to paragraph F, WVDEP would also be responsible for providing OSMRE written findings that each permit application involving lands containing leased Federal coal is in compliance with the State program.

Paragraph F would set forth the State, OSMRE, and BLM's responsibility to coordinate with other agencies in instances where the land at issue contains leased Federal coal. Under the revised agreement, the State would be required to provide OSMRE with written findings demonstrating that each permit application complies with the West Virginia program and perform a technical analysis of each application to assist OSMRE.

To make the recommendation for the Secretary's decision on the mining plan, OSMRE would be required to consult and obtain concurrence from BLM, the Federal land management agency, and any other agency with jurisdiction over Federal lands affected by the proposed operations. Lastly, paragraph F of the revised Article VI would also establish a 5 day deadline for BLM to notify the State of actions taken pursuant to 43 CFR part 3400 and provide documentation on all leasing decisions.

The revised agreement would add paragraph G. Permit Application Decision and Permit Issuance. Under the proposed revised Article VI, paragraph G would authorize the State to approve, disapprove, or conditionally approve coal exploration activities on Federal lands. The proposed paragraph G would require certain terms or conditions to be incorporated into State-issued permits, including but not limited to, lease requirements pursuant to the MLA and post-mining land use conditions imposed by the Federal land management agency.

Additionally, the proposed paragraph G would allow the State to approve surface mining permits or coal exploration activities involving leased Federal coal before the Secretary has issued a decision on the mining plan. However, paragraph G would clarify that the State would be responsible for informing the operator that permit issuance is contingent upon the Secretary's approval of the mining plan and coal exploration or surface mining cannot commence unless the mining plan has been approved. Further, the revised agreement would authorize the State to reserve the right to withdraw permit approval or modify the permit requirements in order to conform with any terms or conditions imposed by the Secretary in the approval of the mining.

The revised agreement would add paragraph H. Review Procedures for Permit Revisions; Renewals; and Transfer, Assignment or Sale of Permit Rights, which would incorporate the procedures for the above-listed permit actions. For applications involving permit revisions or renewals on Federal lands, WVDEP would be responsible, under the revised agreement, to review and approve the proposed revision or renewal. However, the revised agreement would require the State to consult OSMRE beforehand, to determine whether the proposed permitting action constitutes a mining plan modification. The proposed paragraph H would require OSMRE to notify the State, within 15 days of receiving a copy, if the proposed permit revision or renewal constitutes a mining plan modification. For mining plan modifications requiring Secretarial approval, the proposed paragraph H would direct OSMRE and the State to follow the procedures outlined in proposed paragraph E. Review Procedures Where Federal Surface and Leased Federal Coal Is Involved of the revised agreement.

Additionally, the proposed paragraph H would allow OSMRE to establish criteria, consistent with the mining plan modification criteria set forth in 30 CFR 746.18, to identify those revisions or renewals that clearly do not constitute mining plan modifications. If OSMRE determines the renewal or revision does not constitute a mining modification, or the criteria for non-mining plan modifications is satisfied, the revised agreement under the proposed paragraph H would direct the State to review the proposed revision or renewal according to the procedures set forth in the proposed paragraph D. Review Procedures Where There is Federal Surface, but No Leased Federal Coal Involved, the West Virginia Program, and the regulations at 30 CFR 740.13(d), if applicable.

The proposed paragraph H would require transfer, assignment or sale of permit rights on Federal lands to be processed in accordance with the West Virginia program and the regulations at 30 CFR 740.13(e). Similar to the permit revisions or renewals procedures, applications for transfer, assignment or sale of permit rights must be evaluated to determine whether the application constitutes a mining plan modification. Those applications that constitute a mining plan modification would be processed according to the procedures provided in the proposed paragraphs E. Otherwise, applications that do not constitute a mining plan modification would be evaluated by the State according to the procedures set forth in the proposed paragraph D of the revised agreement.

Existing Article VII: Inspections

Proposed Revised Article VII: Inspections

The revised Article VII would continue to require WVDEP to perform inspections on Federal land pursuant to 30 CFR 740.4(c)(5) and provide OSMRE with a copy of the completed State inspection report. However, the proposed revisions to Article VII would require WVDEP to provide OSMRE with access to a copy after the State conducts an inspection on Federal lands, on a “timely basis”, rather than the 15 day deadline required by the existing cooperative agreement. Although the existing cooperative agreement states that nothing within the 1984 cooperative agreement will prevent other inspections by authorized Federal or State agencies, the proposed agreement would specifically include a reference to 30 CFR parts 842 and 843 to clarify that the authority for Federal inspection and monitoring and Federal enforcement is retained. Additionally, the proposed revisions would refer all citizen complaints, which do not involve an imminent danger or significant, imminent environmental harm, to WVDEP for action. The information regarding State and Department of Interior witness availability would be moved to Article VIII: Enforcement.

Existing Article VIII: Enforcement

Proposed Revised Article VIII: Enforcement

Article VIII would be revised to clarify that WVDEP's enforcement actions includes the assessment of civil or criminal penalties in addition to issuing orders of cessation or notices of violation. Although the existing cooperative agreement requires the State to take appropriate enforcement action pursuant to the agreement, the revised agreement would additionally require WVDEP to notify OSMRE and the Federal land management agency of decisions to suspend or revoke a permit on Federal land prior to issuing such decision.

In instances where inspections are conducted solely by OSMRE, or during a joint inspections where WVDEP and OSMRE do not agree on a particular enforcement action, the proposed revisions incorporate a reference to 30 CFR part 846 and would allow OSMRE to take the necessary enforcement actions regarding individual civil penalties.

The proposed revisions to Article VIII would provide that permits to conduct coal exploration or surface coal mining and reclamation operations may be suspended or revoked by WVDEP pursuant to the State program, but issuance of any decision to suspend or revoke a permit on Federal land requires that WVDEP must first inform OSMRE and the Federal land management agency before its decision is issued. The State would be required to notify BLM, under the revised agreement, of its decision to revoke or suspend a permit is on lands containing leased Federal coal, so BLM may assess whether cancellation of the Federal lease is necessary.

The proposed revisions to Article VIII would reference a new Appendix A, which lists the enforcement authority reserved to the Secretary.

Existing Article IX: Bonds

Proposed Revised Article IX: Bonds

The revised Article IX would incorporate coal exploration activities, use of penal bonds, the conversion to a full-cost reclamation bond in the event the cooperative agreement is suspended or terminated, and the agency coordination and procedures associated with bond release and forfeiture. Under the revised agreement, the State and the Secretary would require operators conducting coal exploration or surface coal mining and reclamation activities on Federal lands to submit a performance and/or penal bond. While the existing cooperative agreement provides that such bond is conditioned upon the compliance with all applicable requirements, the revised Article would specify that these requirements include those established by SMCRA, the State program, other State or Federal laws and regulations, along with any other requirements imposed by the Secretary or Federal land management agency. In order for the State to release the bond, the State would be required to obtain OSMRE's concurrence in the bond release, which in turn would require OSMRE to consult the Federal land management agency and any other agency with jurisdiction or responsibility over Federal lands affected by the operation. The proposed revisions to this Article would additionally require the State to advise OSMRE of any annual adjustments to the bonds made pursuant to the West Virginia program.

The proposed revised Article would continue to require bonds to be made payable only to the United States in the event the cooperative agreement terminated. However, the proposed revisions would additionally require the bond to provide that the portion covering Federal lands to be converted into a full-cost reclamation bond upon the termination, as well as suspension, of the cooperative agreement. Further, the proposed revisions to this Article would require WVDEP, before termination of the cooperative agreement, to assist OSMRE in obtaining the full-cost reclamation bond from the operator for the areas only covering Federal lands.

Moreover, the list of funds available to the State in the event of bond forfeiture would be revised to include the Special Reclamation Water Trust Fund. Additional language would be added to clarify that reclamation by the State is to be completed consistent with the West Virginia program and the reclamation plan before the permit is revoked or modified.

Further, this existing Article would be revised to include additional bonds requirements and would identify the responsible agencies for collection and maintenance of such bonds. The revised agreement would provide that OSMRE or the appropriate Federal agency will be responsible for the collection and maintenance of Federal lease bonds or lessee protection bonds, if such bonds are required. The revised agreement would require BLM concurrence and compliance with 43 CFR part 3400 requirements before releasing a Federal lease bond.

Proposed Revised Article X: Designating Land Areas Unsuitable for All or Certain Types of Surface Mining and Reclamation Operations and Activities and Valid Existing Rights (VER) and Compatibility Determinations

The revised agreement would add a new Article to the existing cooperative agreement entitled, Article X: Designating Land Areas Unsuitable for all or Certain Types of Surface Mining and Reclamation Operations and Activities and Valid Existing Rights (VER) and Compatibility Determinations. Although Article VI of the existing cooperative agreement contemplates the content discussed below, the revised agreement would provide a more extensive outline of the procedures and agency responsibilities associated with the following determinations.

Paragraph A. Unsuitability Petitions would set forth the Secretary's reserved authority to designate Federal lands as unsuitable for mining as provided by 30 CFR 745.13(a). The addition of paragraph A would discuss OSMRE's responsibilities in processing requests for designating Federal lands as unsuitable for mining and the termination of previous designations in accordance with 30 CFR part 769. The revised agreement would provide the required procedures for State and Federal agency coordination after a petition to designate lands unsuitable for mining is received.

Paragraph B. Valid Existing Rights Determinations would provide the procedures and appropriate actions to be taken by the applicable State or Federal agency when requests for determinations of VER, pursuant to section 522(e) of SMCRA and the Federal regulations at 30 CFR 761.11, are received. For private in-holdings within areas protected under 30 CFR 761.11(a) and SMCRA section 522(e)(1), WVDEP is to process the VER request in accordance with the State program, but use the Federal VER definition at 30 CFR 761.5 when making VER determinations.

Paragraph C. Compatibility Determinations would outline the procedures for compatibility determinations and will state that the Secretary is responsible for issuing findings discussing whether there are significant recreational, timber, economic or other values that may be incompatible with surface coal mining operations incident to underground mining on Federal lands within the boundaries of a national forest protected pursuant to section 522(e)(2) of SMCRA and 30 CFR 761.11(b). The proposed revision would list OSMRE as the responsible agency to process requests for compatibility determinations in accordance with the procedures outlined in 30 CFR 761.13.

Existing Article X: Termination of Cooperative Agreement

Proposed Revised Article XI: Termination of Cooperative Agreement

Article X would be renumbered to read: Article XI: Termination of Cooperative Agreement.

Existing Article XI: Reinstatement of Cooperative Agreement

Proposed Revised Article XII: Reinstatement of Cooperative Agreement

Article XI would be renumbered to read: Article XII: Reinstatement of Cooperative Agreement.

Existing Article XII: Amendment of Cooperative Agreement

Proposed Revised Article XIII: Amendment of Cooperative Agreement

Article XII would be renumbered to read: Article XIII: Amendment of Cooperative Agreement.

Existing Article XIII: Changes in State or Federal Standards

Proposed Revised Article XIV: Changes in State or Federal Standards

Article XIII would be renumbered to read: Article XIV: Changes in State or Federal Standards. The proposed revisions to the existing Article XIV concern non-substantive wording or editorial changes.

Existing Article XIV: Changes in Personnel and Organization

Proposed Revised Article XV: Changes in Personnel and Organization

Article XIV would be renumbered to read: Article XV: Changes in Personnel and Organization. The proposed revisions to the existing Article WIV concern non-substantive wording or editorial changes.

Existing Article XV: Reservation of Rights

Proposed Revised Article XVI: Reservation of Rights

Article XV would be renumbered to read: Article XVI: Reservation of Rights. The proposed amendment would include a reference to Appendix A.

III. Public Comment Procedures

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.

Electric or Written Comments

If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.

We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than those listed (see ADDRESSES) will be included in the docket for this rulemaking and considered.

Public Availability of Comments

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Public Hearing

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., E.S.T. on August 4, 2020. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

Public Meeting

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If a public meeting is held instead, the Field Office Director will prepare a summary for the administrative record. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record.

IV. Statutory and Executive Order Reviews

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

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

Other Laws and Executive Orders Affecting Rulemaking

When a State submits a program amendment to OSMRE for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

List of Subjects in 30 CFR Part 948

• Intergovernmental relations
• Surface mining
• Underground mining

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

PART 948—WEST VIRGINIA

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

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

2. Section 948.30 is amended and revised to read as follows: