[Federal Register Volume 68, Number 166 (Wednesday, August 27, 2003)]
[Rules and Regulations]
[Pages 51447-51449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21876]


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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: Final rule.

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SUMMARY: We are removing 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 amendment 
required a review and approval of the configuration and species 
composition for reclaimed forest land on either a site-by-site basis or 
a program wide basis by the Pennsylvania Bureau of Forestry. By 
removing the amendment, we find that the identified Pennsylvania 
regulations are no less effective than the corresponding Federal 
Regulations.

EFFECTIVE DATE: August 27, 2003.

FOR FURTHER INFORMATION CONTACT: George Rieger, Acting Director, 
Harrisburg Field Office, Telephone: (717) 782-4036, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

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

    By letter dated January 30, 2002 (Administrative Record No. PA 
803.23), the Pennsylvania Department of Environmental Protection 
(PADEP) submitted a comparison of the State regulations at 25 
Pennsylvania (Pa.) Code sections 87.151(d), 89.86(e)(2)(ii)(C), and 
90.155(d) and the corresponding Federal regulations along with its 
explanation of why Pennsylvania's regulations are no less effective 
than their Federal counterparts regarding approval of the configuration 
and species composition for reclaimed forest land. This letter was 
submitted in response to the required amendment to the Pennsylvania 
program codified at 30 CFR 938.16(fff). 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 
Pennsylvania Department of Conservation and Natural Resource's Bureau 
of Forestry that it review the regulations at issue. By letter dated 
March 20, 2002 (Administrative Record No. PA 803.25), the Bureau of 
Forestry approved the subject regulations. The Bureau of Forestry also 
noted that it supported the use of native species when practical and 
discourages the use of invasive species.
    We announced our proposal to remove the required amendment in the 
June 3, 2003, Federal Register (68 FR 33037). In the same document, we 
opened the public comment period and provided an opportunity for a 
public hearing or meeting on removing the required amendment. We did 
not hold a public hearing or meeting because no one requested one. The 
public comment period ended on July 3, 2003. We received comments from 
two Federal agencies (the United States Environmental Protection 
Agency, Region III, and the United States Department of Labor, Mine 
Safety and Health Administration's New Stanton and Wilkes-Barre 
Offices). We also received comments from two State agencies (the 
Pennsylvania Game Commission and the Pennsylvania Historical and Museum 
Commission, Bureau for Historic Preservation).

III. OSM's Findings

    Following are the findings we made concerning removing the required 
amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 
732.17. We are removing the required amendment because in the March 
20th letter, the Bureau of Forestry 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 
former three 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 have found that Pennsylvania has met the conditions of 
the required amendment and we are removing it.

[[Page 51448]]

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. PA 803.28), but we 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. PA 803.28). On July 1, 2003 (Administrative 
Record No. PA 803.31), the United States Department of Labor, Mine 
Safety and Health Administration's (MSHA) New Stanton Office wrote to 
us indicating that the proposed rule did not conflict with any of its 
rules or regulations. On July 3, 2003 (Administrative Record No. PA 
803.30), MSHA's Wilkes-Barre Office wrote to us noting that it had no 
comments on the proposal.

State Agency Comments

    The Pennsylvania Game Commission (PGC) commented on June 24, 2003 
(Administrative Record No. PA 803.29), that it generally approves a 
species composition that contains a minimum of 75% woody species. 
However, some endangered and threatened species may require more than 
25% of their habitat to be open grassy areas devoid of trees and 
shrubs. PGC noted that in those cases, it must have the ability to 
alter the tree to grass ratios. PGC further noted that it supports the 
recommendations of the Bureau of Forestry and believes that removal of 
the proposed amendment satisfies the applicable criteria of 30 CFR 
732.15.
    We believe that the Pennsylvania program currently provides 
regulations that satisfy PGC's concerns regarding species composition. 
Pennsylvania's regulations at 25 Pa. Code 87.151(d), 
89.86(e)(2)(ii)(C), and 90.155(d) provide that the vegetation 
configuration and species composition for a postmining land use of fish 
and wildlife habitat must be established in accordance with guidelines 
from the Fish and Boat Commission and the PGC. Thus, the program 
provides for input by the PGC on species composition. In addition, the 
regulations at 25 Pa. Code 87.138, 89.82, and 90.150 provide 
protections for threatened and endangered species that require 
consultation with the PGC. This section also provides additional 
guidelines for selecting and planting vegetation on areas where the 
approved postmining land use is fish and wildlife habitat.
    The Pennsylvania Historical and Museum Commission, Bureau for 
Historic Preservation (PHMC) submitted comments on July 3, 2003 
(Administrative Record No. PA 803.32). PHMC indicated that removing the 
referenced amendment will not affect the consideration of cultural 
resources in the mine reclamation process. PHMC further stated it 
supported the Pennsylvania Bureau of Forestry recommendation to avoid 
the use of invasive species which can be harmful to the environment and 
historic buildings and landscapes.
    We agree with PHMC's assessment on removal of the required 
amendment. With regard to PHMC's comment on invasive species, which 
reflected the Bureau of Forestry's recommendation, Pennsylvania's 
regulations are no less effective than the Federal regulations at 30 
CFR 816/817.111. The Federal regulations require that the revegetation 
be comprised of native species or, where necessary to achieve the 
postmining land use, an approved introduced species; be compatible with 
plant and animal species of the area, and ``meet the requirements of 
applicable State and Federal seed, poisonous and noxious plant and 
introduced species laws or regulations.'' Similarly, Pennsylvania's 
regulations at 25 Pa. Code 87.147, 87.149, 89.86, 90.151 and 90.153 
also require that the revegetation be of the same seasonal variety 
native to the area unless an introduced species is necessary to achieve 
the postmining land use; compatible with animal and plant species; can 
not be poisonous or noxious species; and must meet the applicable 
requirements of State and Federal seed and introduced species statutes. 
Additionally, Pennsylvania informed us in its January 30, 2002 
(Administrative Record No. PA 803.23), letter supporting removal of the 
required amendment that the configuration and species composition for 
reclaiming forestland is reviewed and approved on a permit-by-permit 
basis by foresters in its District Mining Offices.

Environmental Protection Agency (EPA) Comments

    Under 30 CFR 732.17(h)(11)(i) we requested comments on the 
amendment from EPA (Administrative Record No. PA 803.28). EPA responded 
on July 17, 2003 (Administrative Record No. PA 803.33), that it has 
determined that removal of the required amendment at 30 CFR 938.16(fff) 
would not be inconsistent with the Clean Water Act or other statutes or 
regulations under its jurisdiction.

V. OSM's Decision

    Based on the above findings, we are removing the required amendment 
at 30 CFR 938.16(fff).

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 regulation.

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.

[[Page 51449]]

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. 
Pennsylvania does not regulate any Native Tribal 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

    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 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 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. This determination is based upon the fact that the 
Pennsylvania 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 
Pennsylvania 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 
unfounded mandate.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 7, 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

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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 (fff).

[FR Doc. 03-21876 Filed 8-26-03; 8:45 am]
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