[Federal Register Volume 68, Number 106 (Tuesday, June 3, 2003)]
[Proposed Rules]
[Pages 33037-33039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13850]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-142-FOR]


Pennsylvania Regulatory Program

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

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

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SUMMARY: We 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). The required amendment concerns configuration and species 
composition for reclaimed forest land.
    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. July 3, 2003. If requested, we will hold a public hearing on the 
amendment on June 30, 2003. We will accept requests to speak at a 
hearing until 4 p.m., e.s.t. on June 18, 2003.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to George Rieger, Acting Director, 
Harrisburg Field Office at the address listed below.
    You may review copies of the Pennsylvania program, 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.
    George Rieger, Acting Director, Harrisburg Field Office, Office of 
Surface Mining Reclamation and Enforcement, Harrisburg Transportation 
Center, Third Floor, Suite 3C, 4th and Market Streets, Harrisburg, 
Pennsylvania 17101, Telephone: (717) 782-4036, Internet: 
[email protected].
    Joseph Pizarchik, Director, Bureau of Mining and Reclamation, 
Pennsylvania Department of Environmental Protection, Rachel Carson 
State Office Building, P.O. Box 8461, Harrisburg, Pennsylvania 17105-
8461, Telephone: (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

    Federal regulations at 30 CFR 938.16(fff) require Pennsylvania to 
submit a proposed amendment to sections 87.151(d), 89.86(e)(2)(ii)(C), 
and 90.155(d) of the Pennsylvania Code ``to require that the 
configuration and species composition for reclaimed forest land be 
reviewed and approved, either on a site-by-site basis or a program wide 
basis, by the Bureau of Forestry [the Bureau].'' These provisions of 
the Pennsylvania Code are excerpted below:

Section 87.151(d)

    (d) When the approved postmining land use is fish and wildlife 
habitat, unless alternative plans are approved or required by the 
Department, a minimum of 75% of the land affected shall be planted 
with a mixture of woody species which provides a diverse plant 
community. The remaining affected area shall be planted to an 
approved herbaceous cover. The configuration and species composition 
of the cover types shall be established in accordance with 
guidelines

[[Page 33038]]

established by the Fish and Boat Commission and the Game Commission.

Section 89.86(e)(2)(ii)(C)

    (C) When the approved postmining land use is wildlife habitat, a 
minimum of 75% of the land affected shall be planted with a mixture 
and minimum of 400 woody plants per acre. The configuration and 
species composition of the cover types shall be established in 
accordance with guidelines established by the Fish and Boat 
Commission and the Game Commission.

Section 90.155(d)

    (d) When the approved postdisposal land use is wildlife habitat, 
unless alternative plans are approved by the Department, a minimum 
of 75% of the land affected shall be planted with a mixture of woody 
species which provides a diverse plant community. The remaining 
affected area shall be planted to an approved herbaceous cover. The 
configuration and species composition of the cover types shall be 
established in accordance with guidelines of the Fish and Boat 
Commission and Game Commission.

    While similar to the Federal regulations at 30 CFR 816/
817.116(b)(3)(i), the regulations cited above do not require that 
minimum stocking and planting arrangements be established upon 
consultation and approval by the State agencies responsible for the 
administration of the forestry program. In Pennsylvania, the Bureau of 
Forestry is responsible for the administration of the forestry program. 
Therefore, in the April 8, 1993 Federal Register (58 FR 18149), we 
required Pennsylvania to amend sections 87.151(d), 89.86(e)(2)(ii)(C), 
and 90.155(d) to require approval by the Bureau of Forestry on either a 
site-by-site or program-wide basis.
    By letter dated January 30, 2002, Pennsylvania Department of 
Environmental Protection (DEP) submitted a comparison of the State 
regulations referred to above and the corresponding Federal regulations 
along with its explanation of why Pennsylvania's regulations are as 
effective as their Federal counterparts. Following this correspondence, 
OSM's Harrisburg Field Office, by letter dated February 22, 2002 
(Administrative Record No. PA-803.24), submitted a request to the 
Bureau that it review the regulations at issue. By letter dated March 
20, 2002 (Administrative Record No. PA-803.25), the Bureau approved the 
subject regulations.
    In its letter, the Bureau stated that it ``approve[d] of the 
Pennsylvania DEP Protection Regulations, particularly the relevant 
portions of sections 87.151(d), 89.86(e)(2)(ii)(C), 90.155(d), 
90.155(C), 87.155(b)(2), 89.86(e)(2)(ii), and 90.159(b)(2).'' The 
latter four regulations approved in the Bureau's letter contain species 
composition and configuration rules that apply to reclaimed forest 
land. Because the Bureau has approved the configuration and species 
composition for reclaimed forest land, as required under 30 CFR 
938.16(fff), we are proposing to remove the required amendment.
    We note that, in its letter, the Bureau did not specify whether it 
was approving Pennsylvania's regulations on a site-by-site or a program 
wide basis, as required in 30 CFR 938.16(fff). However, in its January 
30, 2002, letter to us, the State pointed out that ``[c]onsultation 
with the Pennsylvania Bureau of Forestry occurred on a program wide 
basis during development of the primacy regulations in the early 1980s. 
In addition, the configuration and species composition for reclaiming 
forest land is reviewed and approved on a permit-by-permit basis by 
foresters in the District Mining Office.''
    Finally, the Bureau noted in its approval that ``[w]hile we approve 
of the regulations as written, we would like to point out that they 
could be improved with language that promotes the use of native species 
when practical, and to not use the invasive species on [Department of 
Conservation and Natural Resources] list of invasive species.'' 
(emphasis in original). We, too, encourage the use of native species, 
when practical, and discourage the use of invasive species. However, 
because the Bureau's suggestion is not a contingency on its approval, 
we are proposing to remove the required amendment.

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.

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-142-FOR'' 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 Comment

    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 June 
18, 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

[[Page 33039]]

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. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) 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 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. 
This proposed rule applies only to the Pennsylvania program and 
therefore does not affect tribal programs.

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 
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 submittal, which is the subject of this rule, is based upon 
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. 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, 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. 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 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 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 did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 27, 2003.
Brent Wahlquist,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 03-13850 Filed 6-2-03; 8:45 am]
BILLING CODE 4310-05-P