[Federal Register Volume 71, Number 146 (Monday, July 31, 2006)]
[Proposed Rules]
[Pages 43087-43092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12186]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-148-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: OSM is announcing the receipt of a proposed amendment to the 
Pennsylvania regulatory program (hereinafter, the ``Pennsylvania 
program'') under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). The proposed amendment (Administrative Record 
Number PA 887.00) was submitted to clarify the requirements for shaft 
and slope development and other issues relating to blasting at a mine 
site.
    This document gives the times and locations that the Pennsylvania 
program and this submittal are available for your inspection, the 
comment period during which you may submit written comments, and the 
procedures that we will follow for the public hearing, if one is 
requested.

DATES: We will accept written comments until 4 p.m., local time August 
30, 2006. If requested, we will hold a public hearing on August 25, 
2006. We will accept requests to speak until 4 p.m., local time on 
August 15, 2006.

ADDRESSES: You may submit comments, identified by ``PA-148-FOR'' by any 
of the following methods:
     E-mail: [email protected].
     Mail/Hand Delivery: George Rieger, Director, Pittsburgh 
Field Division, Office of Surface Mining Reclamation and Enforcement, 
415 Market Street, Room 304, Harrisburg, PA 17101, Telephone: (717) 
782-4036.

[[Page 43088]]

     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
docket number ``PA-148-FOR'' for this rulemaking. For detailed 
instructions on submitting comments and additional information on the 
rulemaking process, see the ``Public Comment Procedures'' section in 
this document. You may also request to speak at a public hearing by any 
of the methods listed above or by contacting the individual listed 
under FOR FURTHER INFORMATION CONTACT.
    Docket: You may review copies of the Pennsylvania program, this 
submission, a listing of any scheduled public hearings, and all written 
comments received in response to this document at OSM's Pittsburgh 
Field Division Office at the address listed above during normal 
business hours, Monday through Friday, excluding holidays. You may 
receive one free copy of the submission by contacting OSM's Pittsburgh 
Field Division's Harrisburg Office. In addition, you may receive a copy 
of the submission during regular business hours at the following 
location:
    Joseph P. Pizarchik, Director, Bureau of Mining and Reclamation, 
Pennsylvania Department of Environmental Protection, Rachel Carson 
State Office Building, PO Box 8461, Harrisburg, Pennsylvania 17105-
8461, Telephone: (717) 787-5103.

FOR FURTHER INFORMATION CONTACT: George Rieger, Telephone: (717) 782-
4036. E-mail: [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 this Act * * *; and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to this 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 the Pennsylvania 
program and program amendments at 30 CFR 938.11, 938.12, 938.15 and 
938.16.

II. Description of the Proposed Amendment

    By letter dated June 8, 2006 (Administrative Record Number PA 
887.00), the Pennsylvania Department of Environmental Protection 
(PADEP) sent OSM a program amendment to address blasting for the 
development of shafts for underground mines and to make administrative 
changes to regulations relating to blasting in 25 Pa. Code Chapters 77, 
87, 88, 89 and 210. However, by letter dated July 5, 2006 
(Administrative Record Number PA 887.02), PADEP withdrew the provisions 
pertaining to industrial mineral underground mining provisions at 
Chapter 77 since they are not coal related. Therefore, only those 
changes at 25 Pa. Code Chapters 87, 88, 89 and 210 will be addressed in 
this rule. The proposed changes clarify that the use of explosives in 
connection with the construction of a mine opening for an underground 
coal mine is a surface mining activity subject to the applicable 
requirements in Chapters 87 or 88 and that the person conducting the 
blasting activity must possess a blaster's license. In addition, PADEP 
is proposing changes to the scheduling requirements applicable to the 
use of explosives for constructing openings for coal and industrial 
mineral underground mines and changes to the requirements for 
protective measures to be taken when surface coal mine blasting is in 
proximity to a public highway or an entrance to a mine. Finally, a 
category for mine opening blasting is being added to the 
classifications of blaster's licenses.
    The full text of the document is available for you to read at the 
location listed above under ADDRESSES. A summary of the proposed 
changes, as provided by Pennsylvania in the Preamble of their proposed 
rule (Administrative Record Number PA 887.00), are as follows:
    25 Pa. Code 210.11. Definition.
    PADEP is proposing to add a definition for the term ``mine opening 
blasting'' to 25 Pa. Code 210.11 as follows: ``Mine opening blasting--
Blasting conducted for the purpose of constructing a shaft, slope, 
drift, or tunnel mine opening for an underground mine, either operating 
or under development, from the surface down to the point where the mine 
opening connects with the mineral strata to be or being extracted.''
    25 Pa. Code 87.1, 88.1, and 89.5. Definitions.
    PADEP is proposing to add a definition for the term ``mine opening 
blasting'' to 25 Pa. Code 87.1, 88.1, and 89.5 as follows: ``Mine 
opening blasting--Blasting conducted for the purpose of constructing a 
shaft, slope, drift, or tunnel mine opening for an underground mine, 
either operating or under development, from the surface down to the 
point where the mine opening connects with the coal seam to be or being 
extracted.''
    25 Pa. Code 87.124. Use of explosives: general requirements.
    PADEP is proposing to change subsection (b) to correct the 
reference from ``87.125'' to ``87.126 (relating to use of explosives: 
public notice of blasting schedules).''
    As proposed, subsection (b) reads:

    Blasts that use more than 5 pounds of explosive or blasting 
agents shall be conducted according to the schedule required by 
section 87.126 (relating to use of explosives: public notice of 
blasting schedules).

    25 Pa. Code 87.126. Use of explosives: public notice of blasting 
schedule.
    PADEP is proposing to delete the following phrase at subsection 
(b)(2)(ii), ``each period may not exceed 4 hours''.
    As proposed, subsection (b)(2)(ii) reads:

    Dates and time periods when explosives are to be detonated.

    25 Pa. Code 87.127. Use of explosives: surface blasting 
requirements.
    PADEP is proposing to change subsection (a) by adding the 
following:

    * * * except that mine opening blasting conducted after the 
second blast, for that mine opening, may be conducted at any time of 
day or night as necessary to maintain stability of the mine opening 
to protect the health and safety of mineworkers. For mine opening 
blasting conducted after the second blast, for that mine opening, 
the Department may approve vibration limits at a dwelling, public 
building, school, church or commercial or institutional structure, 
that are less stringent than those specified in Subsections (e) or 
(n) if consented to, in writing, by the structure owner and lessee, 
if leased to another party.

    As proposed, subsection (a) reads:

    Blasting shall be conducted between sunrise and sunset, at times 
announced in the blasting schedule, except that mine opening 
blasting conducted after the second blast, for that mine opening, 
may be conducted at any time of day or night as necessary to 
maintain stability of the mine opening to protect the health and 
safety of mineworkers. For mine opening blasting

[[Page 43089]]

conducted after the second blast, for that mine opening, the 
Department may approve vibration limits at a dwelling, public 
building, school, church or commercial or institutional structure, 
that are less stringent than those specified in Subsections (e) or 
(n) if consented to, in writing, by the structure owner and lessee, 
if leased to another party.

    PADEP is proposing to change subsection (b) by adding the phrase 
``or vibration limits,'' and by deleting the term ``excessive noise'' 
and replacing it with the phrase ``the adverse affects of vibration or 
safety hazards.''
    As proposed, subsection (b) reads:

    The Department may specify more restrictive time periods or 
vibration limits, based on public requests or other relevant 
information, according to the need to adequately protect the public 
from the adverse affects of vibration or safety hazards.

    PADEP is proposing to change subsection (e) by deleting the 
following phrases, ``unless the structure is owned by the person who 
conducts the surface mining activities and is not leased to another 
person. The lessee may sign a waiver'', and replacing them with 
``unless the structure is located on the permit area when the structure 
owner and lessee, if leased to another party, have each signed a.''
    As proposed, subsection (e) reads:

    An airblast shall be controlled so that it does not exceed the 
noise level specified in this subsection at a dwelling, public 
building, school, church or commercial or institutional structure, 
unless the structure is located on the permit area when the 
structure owner and lessee, if leased to another party, have each 
signed a waiver relieving the operator from meeting the airblast 
limitations of this subsection.

    PADEP is proposing to change subsection (e)(1) to delete the 
following language, ``Lower frequency limit of measuring system in Hz 
(k 3dB) Maximum level (dB) 0.1 Hz or lower flat response 134, peak 2 Hz 
or lower flat response'' and ``peak 6 Hz or lower flat response 129, 
peak c-weighted, slow response 105 peak dBC.'', and insert the 
following phrase: ``is 133 dBL.''
    As proposed, subsection (e)(1) reads:

    The maximum allowable noise level is 133 dBL.

    PADEP is proposing to change subsection (f)(1) to lower the 
distance from a blasting area where an operator must barricade and 
guard public highways and entrances to the operation from 1,000 feet to 
800 feet. PADEP is also proposing to insert the following language:

    The operator may use an alternative measure to this requirement 
if the operator demonstrates, to the Department's satisfaction, that 
the alternative measure is at least as effective at protecting 
persons and property from the adverse affects of a blast. 
Alternative measures are measures such as:
    (i) Slowing or stopping traffic in coordination with appropriate 
state or local authorities, including local police.
    (ii) Using mats to suppress fly rock.
    (iii) Designing the blast to prevent damage or injury to persons 
and property located on the public highways or at the operation's 
entrances by using design elements such as:
    (A) Orienting the blast so that the direction of relief is away 
from public highways or operation entrances.
    (B) Adjusting blast design parameters including:
    (I) The hole's diameter.
    (II) The number of rows.
    (III) The number of holes.
    (IV) The amount and type of explosive.
    (V) The burden and spacing.
    (VI) The amount and type of stemming.
    (VII) The powder factor.

    As proposed, subsection (f)(1) reads:

    Public highways and entrances to the operation shall be 
barricaded and guarded by the operator if the highways and entrances 
to the operations are located within 800 feet of a point where a 
blast is about to be fired. The operator may use an alternative 
measure to this requirement if the operator demonstrates, to the 
Department's satisfaction, that the alternative measure is at least 
as effective at protecting persons and property from the adverse 
affects of a blast. Alternative measures are measures such as:
    (i) Slowing or stopping traffic in coordination with appropriate 
state or local authorities, including local police.
    (ii) Using mats to suppress fly rock.
    (iii) Designing the blast to prevent damage or injury to persons 
and property located on the public highways or at the operation's 
entrances by using design elements such as:
    (A) Orienting the blast so that the direction of relief is away 
from public highways or operation entrances.
    (B) Adjusting blast design parameters including:
    (I) The hole's diameter.
    (II) The number of rows.
    (III) The number of holes.
    (IV) The amount and type of explosive.
    (VI) The amount and type of stemming.
    (VII) The powder factor.

    PADEP is proposing to delete subsection (l) in its entirety. 
Subsection (l) currently reads:

    The use of a formula to determine maximum weight of explosives 
per delay for blasting operations at a particular site may be 
approved by the Department if the peak particle velocity of 1 inch 
per second required in Sec.  87.126 (relating to use of explosives: 
public notice of blasting schedule) would not be exceeded.

    25 Pa. Code 87.129. Use of explosives: records of blasting 
operations.
    PADEP is proposing to change subsection (4) by adding the phrase: 
``identification of and the''
    As proposed subsection (4) reads:

    The identification of and the direction and distance, in feet, 
to the nearest dwelling, public building, school, church, commercial 
or institutional building or other structure.

    25 Pa. Code 88.135. Blasting: surface blasting requirements.
    PADEP proposes to add the following language to subsection (a):

    * * * except that mine opening blasting conducted after the 
second blast for that mine opening may be conducted at any time of 
day or night as necessary to maintain stability of the mine opening 
to protect the health and safety of mineworkers. For mine opening 
blasting conducted after the second blast, for that mine opening, 
the Department may approve vibration limits at a dwelling, public 
building, school, church or commercial or institutional structure, 
that are less stringent than those specified in Subsection (h) if 
consented to, in writing, by the structure owner and lessee, if 
leased to another party.

    As proposed, subsection (a) reads:

    Blasting shall be conducted between sunrise and sunset, except 
that mine opening blasting conducted after the second blast for that 
mine opening may be conducted at any time of day or night as 
necessary to maintain stability of the mine opening to protect the 
health and safety of mineworkers. For mine opening blasting 
conducted after the second blast, for that mine opening, the 
Department may approve vibration limits at a dwelling, public 
building, school, church or commercial or institutional structure, 
that are less stringent than those specified in Subsection (h) if 
consented to, in writing, by the structure owner and lessee, if 
leased to another party.

    PADEP is proposing to change subsection (b) by adding the following 
phrases: ``or vibration limits,'' and ``from the adverse affects of 
vibration or safety hazards.'' As proposed, subsection (b) reads:

    The Department may specify more restrictive time periods or 
vibration limits, based on other relevant information, according to 
the need to adequately protect the public from the adverse affects 
of vibration or safety hazards.

    PADEP is proposing to change subsection (f)(1) by lowering the 
distance from a blasting area where an operator must barricade and 
guard public highways and entrances to the operation from 1,000 feet to 
800 feet and by adding the following:

    The operator may use an alternative measure to this requirement 
if the operator demonstrates, to the Department's satisfaction, that 
the alternative measure is at least as effective at protecting 
persons and property from the adverse affects of a blast. 
Alternative measures are measures such as:
    (i) Slowing or stopping traffic in coordination with appropriate 
state or local authorities, including local police.
    (ii) Using mats to suppress fly rock.

[[Page 43090]]

    (iii) Designing the blast to prevent damage or injury to persons 
and property located on the public highways or at the operation's 
entrances by using design elements such as:
    (A) Orienting the blast so that the direction of relief is away 
from public highways or operation entrances.
    (B) Adjusting blast design parameters including:
    (I) The hole's diameter.
    (II) The number of rows.
    (III) The number of holes.
    (IV) The amount and type of explosive.
    (V) The burden and spacing.
    (VI) The amount and type of stemming.
    (VII) The powder factor.

    As proposed, subsection (f)(1) reads:

    Public highways and entrances to the operation shall be 
barricaded and guarded by the operator if the highways and entrances 
to the operations are located within 800 feet of a point where a 
blast is about to be fired. The operator may use an alternative 
measure to this requirement if the operator demonstrates, to the 
Department's satisfaction, that the alternative measure is at least 
as effective at protecting persons and property from the adverse 
affects of a blast. Alternative measures are measures such as:
    (i) Slowing or stopping traffic in coordination with appropriate 
state or local authorities, including local police.
    (ii) Using mats to suppress fly rock.
    (iii) Designing the blast to prevent damage or injury to persons 
and property located on the public highways or at the operation's 
entrances by using design elements such as:
    (A) Orienting the blast so that the direction of relief is away 
from public highways or operation entrances.
    (B) Adjusting blast design parameters including:
    (I) The hole's diameter.
    (II) The number of rows.
    (III) The number of holes.
    (IV) The amount and type of explosive.
    (V) The burden and spacing.
    (VI) The amount and type of stemming.
    (VII) The powder factor.

    PADEP is proposing to change subsection (h) to delete the phrase, 
``the maximum peak particle velocity may not exceed 2 inches per 
second'' and add the phrase, ``* * * the blasts shall be designed and 
conducted in a manner that achieves either a scaled distance of 90 or 
meets the maximum allowable peak particle velocity as indicated by 
Figure 1 * * *'' PADEP is further proposing to change the last sentence 
of this subsection by removing the phrase, ``130 DB linear at a 
frequency 6Hz or lower'' and replacing it with ``133 dBL.''
    As proposed, subsection (h) reads:

    In all blasting operations, the blasts shall be designed and 
conducted in a manner that achieves either a scaled distance of 90 
or meets the maximum allowable peak particle velocity as indicated 
by Figure 1 at the location of any dwelling, public building, 
school, church or commercial or institutional building. Peak 
particle velocities shall be recorded in three mutually 
perpendicular directions; longitudinal, transverse and vertical. The 
maximum peak particle velocity shall be the largest of any of three 
measurements. The Department may reduce the maximum peak particle 
velocity allowed, if it determines that a lower standard is required 
because of density of population or land use, age or type of 
structure, geology or hydrology of the area, frequency of blasts, or 
other factors. The sound pressure level may not exceed 133 dBL.

    PADEP is proposing to change subsection (i) by adding the phrase 
``and sound pressure.'' As proposed subsection (i) reads:

    The maximum peak particle velocity and sound pressure 
limitations of this section do not apply at the following locations: 
* * *

    PADEP is proposing to remove subsection (l) in its entirety. This 
subsection currently reads:

    The use of a formula to determine maximum weight of explosives 
per delay for blasting operations at a particular site, may be 
approved by the Department if the peak particle velocity of 2 inches 
per second would not be exceeded.

    25 Pa. Code 88.493. Minimum environmental protection performance 
standards.
    PADEP is proposing to change subsection (7)(i) by replacing the 
phrase ``initial rounds of slopes, shafts and tunnels'' with ``mine 
opening blasting.''
    As proposed, subsection (7)(i) reads:

    A person who conducts surface blasting activities incident to 
underground mining activities, including, but not limited to, mine 
opening blasting shall conduct the activities in compliance with 
sections 88.45 and 88.134-88.137.

    25 Pa. Code 89.62. Use of explosives.
    PADEP is proposing to change this section to replace the words 
``initial rounds of slopes, shafts and tunnels'' with ``mine opening 
blasting.''
    As proposed, 25 Pa. Code 89.62 reads:

    Each person who conducts surface blasting activities incident to 
underground mining activities, including, but not limited to, mine 
opening blasting, shall conduct the activities in compliance with 
Chapter 87 (relating to surface mining of coal).

    25 Pa. Code 210.12. Scope.
    PADEP is proposing to change this section to add the phrase: 
``Except for persons engaging in mine opening blasting.''
    As proposed, 25 Pa. Code 210.12 reads:

    This chapter applies to persons engaging in the detonation of 
explosives within this Commonwealth. Except for persons engaging in 
mine opening blasting, this chapter does not apply to persons 
authorized to detonate explosives or to supervise blasting 
activities under: * * *

    25 Pa. Code 210.17. Issuance and renewal of licenses.
    PADEP is proposing to change subsection (a) to add the phrase 
``mine opening blasting'' at two places.
    As proposed, this section reads:

    A blaster's license is issued for a specific classification of 
blasting activities. The classifications will be determined by the 
Department and may include general blasting (which includes all 
classifications except demolition, mine opening blasting and 
underground noncoal mining), trenching and construction, seismic and 
pole line work, well perforation, surface mining, underground 
noncoal mining, mine opening blasting, industrial, limited and 
demolition.

III. Public Comment Procedures

    In accordance with 30 CFR 732.17(h), we are seeking your comments 
on whether the submission 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 Pittsburgh Field Division's 
Harrisburg Office may not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: PA-148-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 Pittsburgh Field Division's 
Harrisburg 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

[[Page 43091]]

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., local time on 
August 15, 2006. 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 the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a 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 submission, 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 
regulations.

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, 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 since each such 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. 
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. 4321 et 
seq.).

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 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. 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 governmental 
agencies; and (c) Does not

[[Page 43092]]

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: July 6, 2006.
H. Vann Weaver,
Acting Regional Director, Appalachian Region.
[FR Doc. E6-12186 Filed 7-28-06; 8:45 am]
BILLING CODE 4310-05-P