[Federal Register Volume 68, Number 4 (Tuesday, January 7, 2003)]
[Proposed Rules]
[Pages 721-723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-157]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 68, No. 4 / Tuesday, January 7, 2003 / 
Proposed Rules  

[[Page 721]]



DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-139-FOR]


Pennsylvania Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are announcing the proposed removal of a required amendment to 
the Pennsylvania regulatory program (the ``Pennsylvania program'') 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or 
the Act). OSM is proposing to remove the required amendment because the 
Federal regulation upon which the required amendment is based no longer 
exists. This document gives the times and locations that the 
Pennsylvania program is 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 p.m., 
e.s.t. on February 6, 2003. If requested, we will hold a public hearing 
on the amendment on February 3, 2003. We will accept requests to speak 
at a hearing until 4 p.m., e.s.t. on January 22, 2003.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to George Rieger at the address listed 
below.
    You may review copies of the Pennsylvania program, this amendment, 
a listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Harrisburg Field Office.

Mr. George Rieger, Director, Harrisburg Field Office, Office of Surface 
Mining Reclamation and Enforcement, Transportation Center, Third Floor, 
Suite 3C, 4th and Market Streets, Harrisburg, PA 17101, (717) 782-4036, 
[email protected].
J. Scott Roberts, Director, Bureau of Mining and Reclamation, 
Pennsylvania Department of Environmental Protection, Rachel Carson 
State Office Building, PO Box 8461, Harrisburg, PA 17105-8461, (717) 
787-5103.


FOR FURTHER INFORMATION CONTACT: George Rieger, Telephone: (717) 782-
4036 Internet: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Pennsylvania Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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 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 of 
the Pennsylvania program 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, 938.15, and 
938.16.

II. Description of the Proposed Amendment

    The regulations at 30 CFR 938.16(ss) require Pennsylvania to submit 
a change to its regulations under the ownership and control provisions 
concerning an applicant's eligibility for receiving a provisionally 
issued permit when outstanding violations are present. Specifically, it 
mandates that Pennsylvania amend 25 Pa. Code 86.37(a)(8) and (11) to 
require a permit applicant to submit proof that a violation has been 
corrected or is in the process of being satisfactorily corrected within 
30 days of the initial judicial review affirming the violation.
    The Federal provision corresponding to the required amendment at 
938.16(ss) was formerly located at 30 CFR 773.15(b)(1)(ii). However, on 
December 19, 2000, we made changes to the Federal rules regarding 
ownership and control that eliminated this provision (65 FR 79582). In 
discussing the rule change at 30 CFR 773.15(b)(1)(ii) we noted:

    Under the previous rule at Sec.  773.15(b)(1)(ii), the permittee 
had 30 days from the date that the initial judicial review decision 
affirmed the validity of the violation to submit proof that the 
violation was being corrected to the satisfaction of the agency with 
jurisdiction over the violation. In contrast, final Sec.  773.14(c) 
requires that the regulatory authority initiate action to suspend or 
revoke the permit as improvidently issued if the disposition of 
challenges or administrative or judicial appeals affirms the 
violation or ownership or control listing or finding. We made this 
change to ensure prompt implementation of the section 510(c) permit 
block sanction once the validity of a violation or ownership or 
control listing or finding is affirmed on appeal. (The previous rule 
did not specify what action the regulatory authority must take if 
the permittee did not submit the required proof within 30 days.) 65 
FR at 79623.

    Rather than requiring the permittee to submit proof that an 
affirmed violation is being corrected, as required in 30 CFR 
938.16(ss), the new rule requires the regulatory authority to initiate 
action to suspend or revoke the permit if a violation is affirmed. 
Because the Federal rule change renders the required amendment at 30 
CFR 938.16(ss) unnecessary, we are proposing to remove the required 
amendment. However, at a later date, we will be informing Pennsylvania 
and other States by letter of any changes required in their

[[Page 722]]

programs as a result of the above-referenced change to the Federal 
ownership and control regulations, as well as a result of other changes 
we made to those regulations on December 19, 2000.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the removal of the required amendment satisfies the 
applicable program criteria of 30 CFR 732.15.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We will not consider or respond to 
your comments when developing the final rule if they are received after 
the close of the comment period (see DATES). We will make every attempt 
to log all comments into the administrative record, but comments 
delivered to an address other than the Harrisburg Field Office may not 
be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: SATS No. PA-139'' and your name and return address in 
your Internet message. If you do not receive a confirmation that we 
have received your Internet message, contact the Harrisburg Field 
Office at (717) 782-4036.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., e.s.t. on 
January 22, 2003 If you are disabled and need special 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 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. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. In 65 FR 79582, we 
made several changes to the Federal regulations, including the 
elimination of the counterpart Federal regulation. Taking all of the 
changes made into consideration, we noted in that Federal Register 
notice that ``in accordance with Executive Order 12630, the rule does 
not have significant takings implications. This determination is based 
on the fact that the rule will not have an impact on the use or value 
of private property and so, does not result in significant costs to the 
government.'' Since the elimination of the counterpart Federal 
regulation had no takings implications, the removal of the amendment 
requiring the corresponding State provision will have no takings 
implications.

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 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 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

[[Page 723]]

effect on the supply, distribution, or use of energy, a Statement of 
Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C).

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.). 
In the December 19, 2000 Federal Register notice eliminating the 
counterpart Federal regulation, we estimated that there would be no 
change to industry costs resulting from the changes made to 30 CFR part 
773, which, before the changes, had contained the counterpart Federal 
regulation (65 FR 79582, 79659). Similarly, the removal of the 
amendment requiring the corresponding State provision will not have a 
significant economic impact.

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. For the reasons stated 
above, 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 
governmental 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.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that, by removing 
the required amendment, we are not mandating any State action.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 15, 2002.
Vann Weaver,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-157 Filed 1-6-03; 8:45 am]
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