[Federal Register Volume 72, Number 73 (Tuesday, April 17, 2007)]
[Rules and Regulations]
[Pages 19117-19122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7227]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 938
[PA-147-FOR]
Pennsylvania Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We are removing five required amendments to the Pennsylvania
regulatory program (the ``Pennsylvania program'') regulations under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act)
related to alternative reclamation plans; alternative postmining land
use determinations; and bond forfeiture sites where reclamation is
unreasonable, unnecessary, or impossible. Pennsylvania revised its
program to be consistent with the corresponding Federal regulations and
SMCRA.
We are also approving two of four additional requested changes (not
required) to the Pennsylvania program. Pennsylvania revised its program
at its own initiative to clarify ambiguities and initiate changes in
its fee collection calculations. The two approved changes are in regard
to a typographical reference error and the evaluation of bond
forfeiture sites. We are deferring our decision on two changes in
regard to the discontinuation of a $100 per acre reclamation fee.
EFFECTIVE DATE: April 17, 2007.
FOR FURTHER INFORMATION CONTACT: George Rieger, Chief, Pittsburgh Field
Division, Telephone: (717) 782-4036, e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the Pennsylvania Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Pennsylvania program on July 30, 1982. You
can find background information on the Pennsylvania program, including
the Secretary's findings, the disposition of comments, and conditions
of approval in the July 30, 1982, Federal Register (47 FR 33050). You
can also find later actions concerning Pennsylvania's program and
program amendments at 30 CFR 938.11, 938.12, 938.13, 938.15 and 938.16.
II. Submission of the Amendment
By letter dated May 23, 2006 the Pennsylvania Department of
Environmental Protection (PADEP) sent us an amendment to revise its
program regulations at 25 Pennsylvania Code (Administrative Record No.
PA 793.11) under SMCRA (30 U.S.C. 1201 et seq.).
Pennsylvania sent the amendment in response to five required
program amendments codified in the Federal regulations at 30 CFR 938.16
(mm), (nn), (oo), (pp), and (qq), and to include four additional
changes made at its own initiative. The required amendments pertain to
alternative reclamation plans, alternative post mining land use
determinations, and bond forfeiture sites where reclamation is
unreasonable, unnecessary, or impossible and were required in a final
rule notice published in the Federal Register on October 24, 1991 (56
FR 55080). The revisions that Pennsylvania proposed at its own
initiative concern money received from reclamation fees and the
evaluation of bond forfeiture sites.
We announced receipt of the proposed amendment in the August 28,
2006, Federal Register (71 FR 50868). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the amendment's adequacy (Administrative Record
No. PA 793.17). The public comment period ended on September 27, 2006.
We did not hold a public hearing or meeting because no one requested
one. We received written comments from three Federal agencies and one
environmental organization.
III. OSM's Findings
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, except as noted below, which includes removing
five required amendments to the Pennsylvania regulatory program. We
[[Page 19118]]
are removing the required program amendments at 30 CFR 938.16 (mm),
(nn), (oo), (pp), and (qq). Any revisions that we do not specifically
discuss below concern nonsubstantive wording, editorial, or re-
numbering of section changes and are approved here without discussion.
1. Required Amendment at 30 CFR 938.16 (mm). Alternative Reclamation
Plans and Applicable Performance Standards
This required program amendment concerns alternative reclamation
plans and applicable performance standards. The required program
amendment codified in the Federal regulations at 30 CFR 938.16(mm)
requires Pennsylvania to amend 25 Pa. Code 86.187(b)(1) or otherwise
amend its program by requiring that alternative reclamation plans
comply with all applicable performance standards in accordance with
86.189(c)(2), (c)(3), or (c)(4), whichever is appropriate.
The amendment was required because section 86.187(b)(1) can be
misinterpreted. Currently paragraph (b)(1) provides that the PADEP may
prepare and implement an alternative reclamation plan where it
determines that the original plan may be amended to decrease the cost
of reclaiming the bond forfeiture site. Without more clarification,
this paragraph can be interpreted to allow the PADEP to approve an
alternative reclamation plan that would not require reclamation in
accordance with the applicable performance standards in accordance with
86.189(c)(2), (c)(3), and (c)(4), whichever is appropriate.
Therefore, paragraph (1) of subsection 86.187(b) was not approved
by OSM in an October 24, 1991, rulemaking to the extent that it would
allow the implementation of an alternative reclamation plan that fails
to require reclamation in accordance with the applicable performance
standards mentioned above. See 56 FR 55083.
In response to this required amendment, Pennsylvania has amended 25
Pa. Code 86.187(b) by clarifying that an alternative reclamation plan
must be completed pursuant to 86.187(c). The PADEP is also amending 25
Pa. Code 86.187(c) with this amendment to include the requirement that
alternative reclamation plans must comply with all applicable
performance standards in accordance with 86.189(c)(2), (c)(3), and
(c)(4). See Finding 2 below.
We find that this clarification satisfies the required program
amendment codified in the Federal regulations at 30 CFR 938.16(mm) and
can be approved. Therefore, the required program amendment at 30 CFR
938.16(mm) can be removed.
2. Required Amendments at 30 CFR 938.16 (nn). Bond Forfeiture Sites:
Alternative Reclamation Plans and Alternative Postmining Land Use
This required program amendment concerns bond forfeiture sites
(alternative postmining land use determinations and alternative
reclamation plans). The required program amendment codified in the
Federal regulations at 30 CFR 938.16 (nn) requires Pennsylvania to
submit a proposed amendment to 25 Pa. Code 86.187(c) and section 18(c)
of the Pennsylvania Surface Mining Conservation and Reclamation Act (PA
SMCRA) or otherwise amend its program to be no less effective than 30
CFR 816.133(a) and 817.133(a) by requiring that alternative postmining
land use determinations for sites with forfeited bonds, under the
Federal interim program or under Pennsylvania's permanent program, be
made to ensure that all disturbed areas are restored to conditions that
are capable of supporting either the uses they were capable of
supporting before any mining, or higher or better uses.
The amendment was required because section 18(c) of PA SMCRA and 25
Pa. Code 86.187(c) currently allow an alternative reclamation plan that
merely calls for reclaiming the land so that it is suitable for
agriculture, forests, recreating wildlife or water conservation,
without regard to whether the alternative postmining land use is equal
to or higher than the premining landuse as required by 30 CFR
816.133(a) and 817.133(a).
Therefore, section 18(c) of PA SMCRA and paragraph (c) of section
86.187 were not approved by OSM in an October 24, 1991, rulemaking to
the extent that they did not provide for all disturbed areas to be
restored to conditions that are capable of supporting either the uses
they were capable of supporting before any mining, or higher or better
uses. See 56 FR 55084.
In response to this required amendment, Pennsylvania has amended 25
Pa. Code 86.187(c) by deleting language which allowed for alternate
reclamation plans for bond forfeiture sites that would make the sites
suitable, at a minimum, for agriculture, forests, recreation, wildlife
or water conservation. The PADEP also added language to 86.187(c) that
makes it clear that an alternate plan must comply with all applicable
performance standards at 86.189(c)(2) through (c)(4), whichever is
appropriate and ensure that all disturbed areas are restored to
conditions that are capable of supporting either the uses they were
capable of supporting before any mining or higher or better uses.
PADEP did not submit changes to section 18(c) of PA SMCRA.
Nevertheless, we believe that section 18(c) can be interpreted in a
manner that does not compromise the amended requirements of section
86.187(c), and therefore conclude that the statutory provision need not
be amended. Should we later determine that the previously unapproved
portion of section 18(c) is being interpreted to override the new
requirements at Sec. 86.187(c), such that the program is again less
effective than the Federal regulations, we will take action to
reinstate the disapproval of the offending portion of section 18(c).
For the foregoing reasons, we find that the amendment to 25 Pa.
Code 86.187(c) satisfies the requirements of 30 CFR 938.16(nn) and can
be approved. Therefore, the required program amendment codified in the
Federal regulations at 30 CFR 938.16(nn) can be removed.
3. Required Amendment at 30 CFR 938.16 (oo). Bond Forfeiture Sites:
Alternative Postmining Land Use Determinations/Alternative Reclamation
Plans
This required program amendment concerns bond forfeiture sites
(alternative postmining land use determinations and alternative
reclamation plans). The required program amendment codified in the
Federal regulations at 30 CFR 938.16(oo) requires Pennsylvania to
delete 25 Pa. Code 86.189(c)(5) or otherwise amend its program to be no
less effective than 30 CFR 816.133(a) and 817.133(a) by requiring that
sites bonded during the Federal interim program or under Pennsylvania's
permanent program be restored to conditions that are capable of
supporting the uses they were capable of supporting before any mining
or higher or better uses.
The amendment was required because 25 Pa. Code 86.189(c)(5)
currently allows for an alternative reclamation plan to make the site
suitable, at a minimum, for agriculture, forests, recreation, wildlife
or water conservation. The Federal regulations at 30 CFR 816.133(a) and
817.133(a) require that all disturbed areas be restored to uses they
were capable of supporting before any mining or to higher or better
uses. The Pennsylvania provision lacks a requirement that a site be
restored to a higher and better use.
Therefore, paragraph (c)(5) of subsection 86.187 was not approved
by OSM in an October 24, 1991,
[[Page 19119]]
rulemaking to the extent that it did not provide for all disturbed
areas to be restored to conditions that are capable of supporting
either the uses they were capable of supporting before any mining, or
higher or better uses. See 56 FR 55085. For the same reason, the
Director did not approve the cross references to 86.189(c)(5) contained
in 86.189(c)(2), (c)(3), and (c)(4).
In response to this required amendment, Pennsylvania has amended 25
Pa. Code 86.189 (c)(5) by deleting this paragraph which allowed for
alternate reclamation plans for bond forfeiture sites that would make
the sites suitable, at a minimum, for agriculture, forests, recreation,
wildlife or water conservation. Federal regulations at 30 CFR
816.133(a) (relating to post mining land use) require that all
disturbed areas be restored to uses they were capable of supporting
before mining or to higher or better uses. The PADEP also deleted
references to subsection (c)(5) at 86.189(c)(2), (c)(3), and (c)(4).
We find that the amendment to 25 Pa. Code 86.187(c)(2)-(5)
satisfies the requirements of 30 CFR 938.16(oo) and can be approved.
Therefore, the required program amendment codified in the Federal
regulations at 30 CFR 938.16 (oo) can be removed.
4. Required Amendment at 30 CFR 938.16 (pp): Bond Forfeiture Sites
Where Reclamation Is Unreasonable, Unnecessary, or Impossible
This required program amendment concerns bond forfeiture sites
where reclamation is considered to be unreasonable, unnecessary, or
impossible. The required program amendment codified in the Federal
regulations at 30 CFR 938.16 (pp) requires that Pennsylvania delete 25
Pa. Code 86.190(a)(3).
The amendment is required because this section allows the landowner
of a bond forfeiture site to prevent reclamation, rendering 25 Pa. Code
86.190 less effective than the Federal regulations at 30 CFR
800.50(b)(2). While Title V of SMCRA, 30 U.S.C. 1251-1279, contains no
specific provisions authorizing the regulatory authority to compel a
recalcitrant landowner to allow reclamation, the Federal regulations at
30 CFR 800.50(b)(2) are quite explicit in requiring the regulatory
authority to use funds collected from the bond forfeiture to complete
the reclamation plan for that site, recalcitrant landowners
notwithstanding. Therefore, paragraph 86.190(a)(3) was not approved in
an October 24, 1991, rulemaking. See 56 FR 55085-55086.
In response to this required amendment, Pennsylvania has deleted 25
Pa. Code 86.190(a)(3). We find that the deletion of 25 Pa. Code
86.190(a)(3) satisfies the requirements of 30 CFR 938.16(pp) and can be
approved. Therefore, the required program amendment codified in the
Federal regulations at 30 CFR 938.16 (pp) can be removed.
5. Required Amendment at 30 CFR 938.16 (qq): Bond Forfeiture Sites
Where Reclamation Is Unreasonable, Unnecessary, or Impossible
This required program amendment concerns bond forfeiture sites
where reclamation is considered to be unreasonable, unnecessary, or
impossible. The required program amendment codified in the Federal
regulations at 30 CFR 938.16 (qq) requires that Pennsylvania delete the
words ``but are not limited to'' from the introductory paragraph of 25
Pa. Code 86.190(a).
The amendment was required because the introductory language of
subsection (a) of section 86.190 currently includes the words ``but are
not limited to,'' which are used to refer to the reasons justifying a
determination that reclamation under the reclamation plan is
unreasonable, unnecessary or physically impossible. Any such reasons
which are not specifically contained in section 86.190 were not
approved.
Currently, 25 Pa. Code 86.190(a) specifies parameters for
determining when completion of the approved reclamation plan is
unreasonable, unnecessary, or physically impossible. The reasons
justifying such a determination include, but are not limited to the
following: (1) The site has been re-permitted and re-bonded for mining
and reclamation is required as a condition of the permit; (2) the site
has been otherwise reclaimed; (3) the landowner refused to allow the
site to be reclaimed and the site is not a hazard to public health,
safety, and welfare or adjacent property. Subsection 86.190(a) also
provides that if the reclamation plan cannot be completed, the bond
amount will be made available for expenditure to reclaim other lands or
restore water supplies affected by other surface mining operations for
which the Department has forfeited bonds.
As we noted in an October 24, 1991, rulemaking notice, the
introductory language of subsection (a) of section 86.190, concerning
the use of funds for other sites where reclamation of the forfeited
site is unreasonable, unnecessary or physically impossible, mirrors the
language of subsection (b), section 18, of PA SMCRA. See 56 FR 55085.
This provision of Pennsylvania law was approved by the Secretary, as
part of Pennsylvania's original permanent program approval.
The reasons specified at section 86.190(a)(1), (a)(2), and (a)(3)
for making a determination not to reclaim a site have not previously
been approved by OSM. If as provided in paragraph (1) of subsection
(a), the site has been re-permitted and re-bonded for mining with full
reclamation of the entire area made a permit condition, then forfeited
bond money from the original permit is not needed for reclamation of
the site. Likewise, as provided in paragraph (2), forfeited bond money
is not needed to reclaim the site if it has been otherwise reclaimed,
as long as such reclamation was performed in compliance with the
reclamation plan and in accordance with the performance standards of
the Pennsylvania program. Therefore, while there are no specific
Federal counterparts to paragraphs (1) and (2) of subsection (a) of
section 86.190, we previously found that these provisions were not
inconsistent with SMCRA and the Federal regulations and they were
approved to the extent that full reclamation of the site in accordance
with the reclamation plan and all applicable performance standards are
required. The PADEP also amended Sec. 86.190(a)(3) by deleting this
section. See Finding 4. Because the basis for the Secretary's approval
of 18(b) of PASMCRA had not changed, the Director approved the
introductory paragraph of subsection 86.190 (a) in an October 24, 1991,
rulemaking, except for the words ``but are not limited to.'' Id.
In response to this required amendment, Pennsylvania has amended 25
Pa. Code 86.190(a) to delete the words ``but are not limited to'' to
make clear that any reasons other than those specifically provided in
25 Pa. Code 86.190(a) are not permissible. We find that the amendment
to 25 Pa. Code 86.190(a) satisfies the requirements of 30 CFR
938.16(qq) and can be approved. Therefore, the required program
amendment codified in the Federal regulations at 30 CFR 938.16 (qq) can
be removed.
6. Additional Change: 25 Pa Code 86.17(e)--Reclamation Fees
Pennsylvania has amended this subsection to discontinue the
collection of the $100 per acre reclamation fee from permittees under
25 Pa. Code 86.17(e). The reclamation fee is deposited in the Surface
Mining Conservation and Reclamation Fund (Fund) as a supplement to
forfeited bonds and is used for reclaiming mining
[[Page 19120]]
operations which have defaulted on their obligation to reclaim mined
sites.
Because issues regarding the Fund's solvency had become apparent,
PADEP revised its bonding requirements and is now requiring all mine
permits to post a full cost reclamation bond. The PADEP believes that
because all of its permittees are now subject to full cost bonding
requirements, there is no longer a basis for maintaining the supplement
(the per acre fee).
The issue of whether OSM acted within its discretion when it
concluded that the Fund is no longer subject to the requirements of 30
CFR 800.11(e) is pending before the United States Court of Appeals for
the Third Circuit in the matter of Pennsylvania Federation of
Sportsmen's Clubs v. Norton, (PFSC v. Norton) No. 06-1780. The outcome
of this case could affect whether OSM may approve the proposed change
to 25 Pa. Code 86.17(e). Therefore, in the interest of judicial
economy, we are deferring our decision on this proposed change until
final disposition of the PFSC v. Norton matter.
7. Additional Change: 25 Pa Code 86.187(a)(1)--Money Received From the
Fees
Pennsylvania has amended 25 Pa. Code 86.187(a)(1) to correct a
typographical error. In paragraph (a)(1), reference was improperly made
to 25 Pa. Code 86.17(b) (relating to permit and reclamation fees). The
correct reference is to 25 Pa. Code 86.17(e). We find that the amended
citation at 25 Pa. Code 86.187(a)(1) corrects a citation error and does
not render the Pennsylvania program inconsistent with SMCRA or the
Federal Regulations and can be approved.
8. Additional Change: 25 Pa Code 86.188(b)(5) and (c)(3)--Evaluation of
Bond Forfeiture Sites
Pennsylvania has amended 25 Pa. Code 86.188 by deleting 25 Pa. Code
86.188(b)(5) and 86.188(c)(3) in order to make it clear that bond
forfeiture funds posted for and still needed to complete reclamation of
the specific site for which the bonds were forfeited will not be used
for reclamation of other sites until reclamation of the forfeited site
has been completed.
Currently, 25 Pa. Code 86.188(b) lists the categories in decreasing
priority order to be used when the Department is considering bond
forfeiture site reclamation. Subsection (b)(5) refers to ``other sites
which need reclamation.'' Furthermore, section (c) lists the factors
that the Department will consider in selecting sites for reclamation
under 25 Pa. Code 86.189(b)(1). Subsection (c)(3) considers the
availability of funds to accomplish the required reclamation of the
site or that portion of the site which is threatening life, health,
safety, other property or the environment.
As noted in an October 24, 1991, rulemaking notice, subsections (b)
and (c) were not approved by OSM to the extent that they would allow
bond forfeiture funds posted for and needed to complete reclamation of
a specific site to be used for reclamation of other sites. See 56 FR at
55084. To the extent that these subsections provided only for a ranking
of sites for reclamation without compromising the requirement that all
sites for which bonds were posted be properly reclaimed, it was
determined they were not inconsistent with section 509(a) of SMCRA and
30 CFR 800.50(b)(2) of the Federal regulations.
The PADEP is addressing the concerns expressed in the October 24,
1991, rulemaking and is deleting the subsections (b)(5) and (c)(3) to
remove any doubt that the PADEP intends to maintain adequate bonding to
have funds available for completion of reclamation should the bonds be
forfeited. We find that the amended regulations at 25 Pa. Code
86.188(b) and (c) are not inconsistent with SMCRA or the Federal
regulations and can be approved.
9. Additional Change: 25 Pa Code 86.283(c)--Reclamation Fees for
Remining Areas
Pennsylvania has amended 25 Pa. Code 86.283(c) to remove a
reference to the per acre reclamation fee for remining areas for mine
operators approved to participate in the financial guarantees program.
PADEP has submitted this amendment to create consistency with the
proposed amendment to 86.17(e) that would delete the per-acre
reclamation fee requirement. See Finding 6 above.
We are deferring our decision on the proposed amendment at 25 Pa.
Code 86.283(c) for the same reason set forth above at Finding 6 in
support of our deferral with respect to the proposed change at
86.17(e).
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. PA-793.17). We received comments from one organization, the
Citizens for Pennsylvania's Future (PennFUTURE) (Administrative Record
No. PA 793.18). PennFUTURE objected to the portion of the program
amendment that would discontinue the collection of Pennsylvania's
reclamation fee at 25 Pa. Code 86.17(e), and requested that we defer
our decision on this proposed change until such time as the matter of
PFSC v. Norton is decided by the United States Court of Appeals for the
Third Circuit.
As we noted above in Finding 6 above, we are deferring our decision
with respect to the proposed amendment to 86.17(e), as well as on an
ancillary proposed change at 86.283(c) (See Finding 9 above). Because
we are deferring our decision, we will not respond to PennFUTURE's
comments in opposition to these amendments in this rulemaking. Instead,
we will respond to the comments in a future rulemaking, wherein we will
decide whether or not to approve the proposed changes to 86.17(e) and
86.283(c).
Federal Agency Comments
Under Federal regulations at 30 CFR 732.17(h)(11)(i) and section
503(b) of SMCRA, we requested comments on the amendment from various
Federal agencies with an actual or potential interest in the
Pennsylvania program (Administrative Record No. PA 793.12). The Mine
Safety and Health Administration (MSHA), District 1, responded
(Administrative Record No. PA 793.13) and stated that it did not have
any comments or concerns regarding this request. The Natural Resources
Conservation Service responded (Administrative Record No. PA 793.14)
and stated that it did not have any comments regarding this request.
Environmental Protection Agency (EPA) Concurrence and Comments
Under Federal regulations at 30 CFR 732.17(h)(11)(i) and (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 Pennsylvania proposed to make in this
amendment pertain to air or water quality standards. Therefore, we did
not ask EPA to concur on the amendment.
On June 6, 2006, we requested comments on the amendment from EPA
(Administrative Record No. PA 793.15). The EPA, Region III, responded
and stated that it did not identify any inconsistencies with the Clean
Water Act or any other statutes or regulations under its jurisdiction.
[[Page 19121]]
V. OSM's Decision
Based on the above findings, we approve, with certain exceptions,
the amendment Pennsylvania sent to us on May 23, 2006. We are removing
the required program amendments codified in the Federal regulations at
30 CFR 938.16(mm), (nn), (oo), (pp), and (qq) and approving two
additional changes to the Pennsylvania program. We defer decision on
two provisions regarding the reclamation fees at 25 Pa. Code 86.17(e)
and 86.283(c). See Findings 6 and 9, respectively.
To implement this decision, we are amending the Federal regulations
at 30 CFR 938, which codify decisions concerning the Pennsylvania
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this regulation effective immediately will expedite
that process. SMCRA requires consistency of State and Federal
standards.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by Section 3 of Executive Order 12988 and has determined that, to the
extent allowable by law, this rule meets the applicable standards of
Subsections (a) and (b) of that Section. However, these standards are
not applicable to the actual language of State regulatory programs and
program amendments because each program is drafted and promulgated by a
specific State, not by OSM. Under Sections 503 and 505 of SMCRA (30
U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments submitted by the States must be based
solely on a determination of whether the submittal is consistent with
SMCRA and its implementing Federal regulations and whether the other
requirements of 30 CFR parts 730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires
that State programs contain rules and regulations ``consistent with''
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Government
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on federally recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal Government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
The basis for this determination is that our decision is on a State
regulatory program and does not involve a Federal program involving
Indian lands.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211, which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on proposed State regulatory program provisions does not
constitute major Federal actions within the meaning of Section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(c)). A determination has been made that such decisions are
categorically excluded from the NEPA process (516 DM 8.4.A).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State amendment that is the subject of this rule is based on
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) Will not
cause a major increase in costs or prices for consumers, individual
industries, geographic regions, or Federal, State, or local government
agencies; and (c) Does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation was not considered a
major rule.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
[[Page 19122]]
List of Subjects in 30 CFR Part 938
Intergovernmental relations, Surface mining, Underground mining.
Dated: February 23, 2007.
H. Vann Weaver,
Acting Regional Director, Appalachian Region.
0
For the reasons set out in the preamble, 30 CFR part 938 is amended as
set forth below:
PART 938--PENNSYLVANIA
0
1. The authority citation for part 938 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 938.15 is amended by adding a new entry in the table in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 938.15 Approval of Pennsylvania regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
May 23, 2006.................. April 17, 2007... 25 Pa. Code:
86.187(a)(1), (b),
(c); 86.188(b)(5)
[deleted];
86.188(c)(3)
[deleted];
86.189(c)(2) through
(c)(4) [deleted
reference to
(c)(5)], 86.189
(c)(5) [deleted];
86.190 (a) [the
words ``but are not
limited to'' are
deleted];
86.190(a)(3)
[deleted].
------------------------------------------------------------------------
Sec. 938.16 [Amended]
0
3. Section 938.16 is amended by removing and reserving paragraphs (mm),
(nn), (oo), (pp), (qq).
[FR Doc. E7-7227 Filed 4-16-07; 8:45 am]
BILLING CODE 4310-05-P