[Federal Register Volume 68, Number 77 (Tuesday, April 22, 2003)]
[Rules and Regulations]
[Pages 19742-19744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9841]


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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 (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We are announcing the 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). We are removing the required amendment because the Federal 
regulation upon which the required amendment was based no longer 
exists.

EFFECTIVE DATE: April 22, 2003.

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

SUPPLEMENTARY INFORMATION: 

I. Background on the Pennsylvania Program
II. Submission of the Proposed 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, 938.15 and 938.16.

II. Submission of the Proposed Amendment

    In the January 7, 2003, Federal Register (68 FR 721), we announced 
our proposal to remove the required amendment to Pennsylvania's program 
found at 30 CFR 938.16(ss). OSM proposed to remove the required 
amendment because the Federal regulation upon which the required 
amendment was based no longer exists. In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendments adequacy. We did not hold a public 
hearing or meeting because no one requested one. The public comment 
period ended on February 6, 2003. We did not receive any comments.

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.
    At 30 CFR 938.16(ss), OSM required Pennsylvania to submit a change 
to its regulations under the ownership and control provisions 
concerning an applicant's eligibility for receiving a 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

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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.

    Because the required amendment at 30 CFR 938.16(ss) required the 
State to comply with the previous regulations found at 30 CFR 
773.15(b)(1)(ii) rather than new Federal regulations found at 30 CFR 
773.14(c), it is now unnecessary and we are therefore removing it.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment in a January 7, 2003, 
Federal Register notice (68 FR 721) but did not receive any.

Federal Agency Comments

    Under 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. 844.06).

Environmental Protection Agency (EPA) Concurrence

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.). We did not seek EPA concurrence on this amendment 
because we determined that it contains no such provisions.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On March 1, 2002, we requested comments on Pennsylvania's 
amendment (Administrative Record No. 844.06), but neither the SHPO nor 
the ACHP responded to our request.

V. OSM's Decision

    Based on the above findings, we are removing the required 
amendment. To implement this decision, we are amending the Federal 
regulations at 30 CFR part 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 Pennsylvania 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 because we have 
removed the counterpart Federal regulation upon which the required 
amendment was based. Therefore, we are requiring no action by the 
State.

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, and 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 
Governments

    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 tribes.

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

    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

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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 removal of the required amendment, which is the subject of this 
rule, will have no significant economic impact upon a substantial 
number of small entities. We made this determination because we are not 
requiring action by the State but removing a required amendment 
concerning the counterpart Federal regulation which no longer exists.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. We made this determination because we are not requiring 
action by the State but removing a required amendment concerning the 
counterpart Federal regulation which no longer exists.

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. We made this determination because we are not requiring 
action by the State but removing a required amendment concerning the 
counterpart Federal regulation which no longer exists.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 11, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.

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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.


Sec.  938.16  [Amended]

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2. Section 938.16 is amended by removing and reserving paragraph (ss).

[FR Doc. 03-9841 Filed 4-21-03; 8:45 am]
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