[Federal Register Volume 71, Number 180 (Monday, September 18, 2006)]
[Rules and Regulations]
[Pages 54590-54596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15445]



[[Page 54590]]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-146-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 six required amendments to the Pennsylvania 
regulatory program (the ``Pennsylvania program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). These 
required amendments pertain to civil penalties, non-augmentative normal 
husbandry practices, affected area, access roads, and permit renewal 
applications. We are removing these required amendments because these 
changes are no longer necessary for the Pennsylvania program to be 
consistent with the corresponding Federal regulations.

DATES: Effective Date: September 18, 2006.

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

SUPPLEMENTARY INFORMATION: 
I. Background on the Pennsylvania Program
II. The Proposed Rule
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, 938.13, 938.15 and 938.16.

II. The Proposed Rule

    In this rulemaking, we are removing the required amendments 
codified in the Federal regulations at 30 CFR 938.16(r), (eee), (ggg), 
(kkk), (lll) and (qqq). We required these amendments in the May 31, 
1991 final rule (56 FR 24687). By letters dated February 7, 2006 
(Administrative Record No. PA 803.37), and February 28, 2006 
(Administrative Record No. PA 803.36), the Pennsylvania Department of 
Environmental Protection (PADEP) sent OSM its explanation and rationale 
of why it believes the Pennsylvania program is no less effective than 
the Federal requirements and that the required amendments codified at 
30 CFR 938.16(eee), (ggg), (qqq) and (ttt) should be removed. Our 
review of PADEP's explanation and rationale results in our removing 
three of the four required amendments. We are not removing the required 
amendment at 30 CFR 938.16(ttt) as discussed below under ``OSM 
Findings''.
    We are also removing required amendments codified at 30 CFR 
938.16(r), (kkk), and (lll). The removal of these three required 
amendments is a result of our review of the required amendments and the 
reason they were required. We have determined that they are no longer 
necessary for the Pennsylvania program to be consistent with the 
corresponding Federal regulations.
    We announced receipt of the State's letters and our proposal to 
remove these amendments in the May 23, 2006, Federal Register (71 FR 
29597-29604). In the same notice, we opened the public comment period 
and provided an opportunity for a public hearing or meeting on the 
proposal to remove the required amendments. The public comment period 
ended on June 22, 2006. We did not hold a public hearing on the 
rulemaking because one was not requested. We received written comments 
from two Federal agencies and one environmental group.

III. OSM's Findings

    Following are the findings we made concerning removal of the 
required program amendments under SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17. We are removing six required amendments 
codified in the Federal regulations at 30 CFR 938.16(r), (eee), (ggg), 
(kkk), (lll), (qqq).

30 CFR 938.16(r). Civil Penalties

    Required Amendment: We required Pennsylvania to amend Chapter 
86.193(h) or otherwise amend its program to be no less effective than 
30 CFR 846.12(a) by clarifying that an individual civil penalty (ICP) 
is not a substitute for mandatory civil penalties, and also to clarify 
when the assessment of an individual civil penalty would be 
appropriate. (See 56 FR 24696, May 31, 1991).
    Our analysis of this required amendment was presented in the May 
23, 2006, proposed rule notice (71 FR 29598). The first part of the 
required amendment was resolved by an amendment PADEP submitted on 
January 23, 1996 (PA 838.00-Part 1), in which it deleted the portion of 
25 Pa. Code 86.195(h) that stated that ``The Department may, when 
appropriate, assess a penalty against corporate officers, directors or 
agents as an alternative to, or in combination with, other penalty 
actions.'' OSM approved this deletion in a final rule issued on 
November 7, 1997 (62 FR 60169-60177), but did not remove the first 
portion of this required amendment. We are, therefore, taking the 
opportunity to remove the first portion in this rulemaking.
    The second part of the requirement stated that Pennsylvania must 
clarify when the assessment of an ICP would be appropriate. While 
subsection (h) does not contain this clarification, subsection (a) 
does. Specifically, 25 Pa. Code 86.195(a) provides for the assessment 
of ICPs against corporate officers who either participate in or 
intentionally allow violations to occur. We have previously determined 
that Pennsylvania's culpability standard for ICPs is actually broader 
than the standard contained in 30 CFR 846.12(a), since the State 
provision does not require ``knowing'' or ``willful'' participation. We 
further recognized that the term ``participates'' is defined to be 
consistent with the Federal terms ``authorized, ordered or carried 
out.'' See 25 Pa. Code 86.1 (``Participates'' means ``to take part in 
an action or to instruct another person or entity to conduct or not to 
conduct an activity.''). Therefore, we approved the culpability 
standard in subsection 86.195(a). 58 FR 18149 and 18153, April 8, 1993. 
(In two other respects, we found subsections 86.195(a) and (b) to be 
inconsistent with Federal requirements, and imposed a required 
amendment at 30 CFR 938.16(eee). 58 FR at 18160. The

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disposition of that required amendment is discussed in the next 
finding.). We note that subsection 86.195(a) was promulgated after the 
imposition of 30 CFR 938.16(r), was approved in part in 1993, and is 
being approved in this rulemaking. This subsection sufficiently sets 
forth the circumstances that will result in the assessment of an ICP; 
therefore, we find that the second portion of the required amendment at 
30 CFR 938.16(r) is satisfied, and it will be removed.

30 CFR 938.16(eee). Civil Penalties

    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 25 Pa. Code 86.195(a) and (b) to specify that ICPs may be 
assessed against corporate directors or agents of the corporate 
permittee and to include provisions for the assessment of an ICP for a 
failure or refusal to comply with any orders issued by the Secretary. 
(See 58 FR 18149 and 18160, April 8, 1993).
    For a discussion of PADEP's explanation and rationale for 
requesting removal of this required amendment, see the May 23, 2006, 
proposed rule notice (71 FR 29598). Pennsylvania has explained, by 
letter dated February 7, 2006 (Administrative Record No. PA 803.37), 
that Section 18.4 of the Pennsylvania Surface Mining Conservation and 
Reclamation Act (PASMCRA) states that ``the Department may assess a 
civil penalty upon a person or municipality * * *'' 52 P.S. 
(Pennsylvania Statute) 1396.18d. PASMCRA provides that the term 
``person'', with respect to ``any clause prescribing or imposing a 
penalty shall not exclude members of an association and the directors, 
officers or agents of a corporation.'' 52 P.S. 1396.3. Given this 
information, we can now find that the Pennsylvania program authorizes 
the issuance of ICPs, which are ``penalties'', to corporate directors 
and agents, as well as corporate officers. Therefore, the first portion 
of the required amendment at 30 CFR 938.16(eee) is unnecessary, and it 
will be removed.
    OSM imposed the second element of the required amendment because it 
believed that the State lacked the authority to issue ICPs for a 
``failure or refusal to comply with an order issued by the Secretary 
under the Act (such as an order to revise a permit).'' (58 FR 18153). 
However, Pennsylvania has informed us, by letter dated February 7, 2006 
(Administrative Record No. PA 803.37), that the term ``violation'', 
contained in subsection 86.195(a), includes an individual's failure to 
comply with an order to modify a permit. In support of its contention, 
the State cited 25 Pa. Code 86.213, which authorizes the PADEP to issue 
orders to modify, suspend or revoke permits. Failure to comply with a 
permit-based order, according to PADEP, constitutes a ``violation'', as 
that term is commonly understood. See, e.g., Black's Law Dictionary 
1564 (7th ed. 1999) (``violation'' is defined as ``an infraction or 
breach of the law'' or, the ``act of breaking or dishonoring the 
law.'') (Emphasis added) For these reasons, Pennsylvania contends that 
25 Pa. Code 86.195(a) provides for the issuance of ICPs for failure to 
comply with any order issued by the PADEP, including orders with 
respect to permits. Our analysis of PADEP's explanation and rationale 
concludes that the Pennsylvania program includes the necessary 
authority to assess ICPs and provides for the assessment of ICPs for 
failure to comply with any orders issued by the Secretary. We find that 
the second portion of the required amendment at 30 CFR 938.16(eee) is 
unnecessary, and it will be removed.

30 CFR 983.16(ggg). Non-augmentative Normal Husbandry Practices

    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to 25 Pa. Code 86.151(d) to define the point at which 
seeding, fertilization, irrigation, or rill and gully repairs cease to 
be augmentative and may be considered non-augmentative normal husbandry 
practices. Moreover, Pennsylvania was required to submit a proposed 
amendment to require that such practices be evaluated and approved in 
accordance with the State program amendment process and 30 CFR 732.17 
(58 FR 18160).
    For a full discussion of PADEP's explanation and rationale for 
requesting removal of this required amendment, see the May 23, 2006, 
proposed rule notice (71 FR 29600). Pennsylvania has explained, by 
letter dated February 28, 2006 (Administrative Record No. PA 803.36), 
that its regulations define the point at which practices cease to be 
selective husbandry and become subject to liability extension in a 
manner that is consistent with the Federal regulations at 30 CFR 816/
817.116(c)(4). Specifically, Pennsylvania cited other portions of 25 
Pa. Code 86.151(d), which declare that normal husbandry practices, such 
as ``pest and vermin control, pruning, repair of rills and gullies or 
reseeding or transplanting or both'', will not require restarting the 
revegetation responsibility period so long as they ``constitute normal 
conservation practices within the region for other land with similar 
uses.'' We note that the quoted language is consistent with, and 
therefore no less effective than, its Federal counterparts at 30 CFR 
816/817.116(c)(4) (``Approved practices shall be normal husbandry 
practices within the region for unmined lands having land uses similar 
to the approved postmining land use of the disturbed area, including 
such practices as disease, pest, and vermin control; and any pruning, 
reseeding, and transplanting specifically necessitated by such 
actions''). Finally, we note that our 1993 disapproval of the word 
``augmented'', in the last sentence of subsection 86.151(d), remains in 
place. We disapproved this word because its presence created the 
inference that there could be instances when ``augmented'' seeding 
would not necessitate restarting of the revegetation liability period. 
See 58 FR 18154. However, we neglected to codify the disapproval on 
April 8, 1993, and are therefore taking the opportunity to correct this 
oversight. The information provided by Pennsylvania, coupled with the 
disapproval of the word ``augmented'', persuade us that the State 
program adequately defines the point at which seeding, fertilization, 
irrigation, or rill and gully repairs cease to be augmentative and may 
be considered non-augmentative normal husbandry practices. Therefore, 
we find that the first portion of the required amendment at 30 CFR 
938.16(ggg) is unnecessary, and it will be removed.
    With respect to the second portion of the required amendment, 
Pennsylvania informed us, by letter dated February 28, 2006 
(Administrative Record No. PA 803.36), that it has not approved any 
alternative selective husbandry practices beyond those already approved 
in 25 Pa. Code 86.151(d). If such additional ``non-augmentative normal 
husbandry practices'' are proposed, Pennsylvania will submit them to 
OSM in accordance with the State program amendment process before these 
practices are approved in Pennsylvania. Based upon this assurance, we 
find that the second portion of 30 CFR 938.16(ggg) has been satisfied 
and will be removed. However, we will continue to monitor the 
Pennsylvania program through Federal oversight and may in the future 
take action if we find that the State is not implementing its program 
in accordance with this finding.

30 CFR 938.16(kkk). Affected Area

    Required Amendment: We codified a required amendment at 30 CFR 
938.16(kkk) requiring PADEP to submit a proposed amendment to 25 Pa. 
Code 88.1 requiring that the definition of affected area include all 
roads that receive substantial use and are

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substantially impacted by the mining activity (58 FR 18160). After 
further review, OSM has determined that the required program amendment 
at 30 CFR 938.16(kkk) was mistakenly imposed, because the Pennsylvania 
program includes a ``road rule'' consistent with OSM's 1988 regulation. 
A full explanation of our rationale can be reviewed in the May 23, 2006 
proposed rule notice (71 FR 29600-29601).
    Specifically, Pennsylvania's anthracite mining regulations define 
``road'' to include ``access and haul roads constructed, used, 
reconstructed, improved or maintained for use in coal exploration or 
surface coal mining activities.'' 25 Pa. Code 88.1. This portion is 
substantively identical to its Federal counterpart at 30 CFR 701.5. The 
Federal definition of ``road'', promulgated in 1988, contains no 
reference to the ``affected area'', since OSM concluded that its new 
``road'' definition was ``clear on its own terms as to which roads are 
included.'' (See 53 FR 45190 and 45192, November 8, 1988). OSM also 
determined that the definition of ``affected area'', as partially 
suspended, ``no longer provides additional guidance as to which roads 
are included in the definition of `surface coal mining operations.' '' 
(See 53 FR 45193). In other words, as of December 8, 1988 (the 
effective date of the final rule promulgated on November 8, 1988), a 
``road'' meeting the criteria of the definition at 30 CFR 701.5 would 
be regulated as a surface coal mining operation, without regard to the 
suspended portion of the ``affected area'' definition. Moreover, the 
definition of ``road'' is broad enough to be capable of including some 
public roads. In fact, OSM expressly declined to exclude public roads 
from the definition, because ``[j]urisdiction under the Act and 
applicability of the performance standards are best determined on a 
case-by-case basis by the regulatory authority.'' See 53 FR 45193. 
Indeed, the 1988 ``road'' definition focuses on the use of the road by 
the mining operation, rather than use by the public, thereby 
alleviating the concern that resulted in the partial invalidation of 
the ``public roads'' exclusion within the definition of ``affected 
area'' in 1985. (See In Re: Permanent Surface Mining Regulation 
Litigation, 620 F. Supp. 1519, 1581-2 (D.D.C. 1985). Since 
Pennsylvania's regulations contain a substantively identical 
counterpart to the Federal definition of ``road'', an amendment to the 
State's ``affected area'' definition is unnecessary and should not have 
been required in 1993. Therefore, the required amendment at 30 CFR 
938.16(kkk) will be removed.

30 CFR 938.16(lll). Access Roads

    Required Amendment: We required that Pennsylvania submit a proposed 
amendment to Section 88.1 to require that the definition of access road 
include all roads that are improved or maintained for minimal and 
infrequent use and that the area of the road is comprised of the entire 
area within the right-of-way, including roadbeds, shoulders, parking 
and side areas, approaches, structures, and ditches. (58 FR 18160) 
After further review, OSM has determined that the required program 
amendment at 30 CFR 938.16(lll) was mistakenly imposed since the 
Pennsylvania program contains a definition consistent with OSM's 
regulation. For a full explanation of our review of the Pennsylvania 
program which led to our determination that this amendment is satisfied 
without any further action by Pennsylvania, please review the May 23, 
2006, proposed rule notice (71 FR 29601).
    Specifically, Pennsylvania's anthracite mining regulations define 
``road'' to include ``access and haul roads constructed, used, 
reconstructed, improved or maintained for use in coal exploration or 
surface coal mining activities.'' 25 Pa. Code 88.1. Moreover, 
Pennsylvania defines ``access road'' to include roads ``located * * * 
for minimal or infrequent use.'' Id. Finally, the Pennsylvania 
definition of ``road'' contains the following language required by 30 
CFR 938.16(lll): ``A road consists of the entire area within the right-
of-way, including the roadbed shoulders, parking and side areas, 
approaches, structures, [and] ditches.'' Id. Read together, 
Pennsylvania's definitions of ``access road'' and ``road'' satisfy the 
required amendment. Indeed, OSM would not have imposed the requirement 
in 1993 if it had first examined these two definitions. Therefore, we 
will remove this required amendment.

30 CFR 938.16(qqq). Permit Renewals

    Required Amendment: We required Pennsylvania to submit a proposed 
amendment to Sec.  86.55(j), or otherwise amend its program, to require 
that any applications for permit renewal be submitted at least 120 days 
before the permit expiration date. (62 FR 60169 and 60171, November 7, 
1997.)
    For a full discussion of PADEP's explanation and rationale for 
requesting removal of this required amendment, see the May 23, 2006, 
proposed rule notice (71 FR 29601). Pennsylvania explained to us, by 
letter dated February 7, 2006 (Administrative Record No. PA 803.37), 
that its program provides sufficient safeguards to assure that renewals 
filed under Sec.  86.55(j) are required to meet the public notice and 
participation requirements, and that coal mining will not continue 
after the permit expiration date. Nevertheless, Sec.  86.55(j) appears 
to allow permittees to submit renewal applications within 120 days of 
permit expiration. This provision is silent, however, with respect to 
the consequences that flow from an untimely filing. In 1997, we 
concluded that this allowance rendered the Pennsylvania program less 
stringent, per se, than subsection 506(d)(3) of SMCRA and less 
effective, per se, than the Federal regulations at 30 CFR 774.15(b). 
Both Federal provisions require that renewal applications be filed at 
least 120 days prior to permit expiration. Since our 1997 decision, we 
have had the opportunity to reexamine our position. In a May 10, 2000, 
rulemaking, we partially disapproved a Kentucky statute that would have 
allowed coal mining operations to continue on an expired permit, so 
long as the permittee had submitted a renewal application, even where 
that application was not filed in a timely fashion. 65 FR 29949 and 
29953. In response to a commenter who asserted that the filing of an 
untimely renewal application (i.e., an application filed within 120 
days of expiration) violates subsection 506(d)(3) of SMCRA, we stated 
that:

    (W)e agree with the commenter that the untimely filing of a 
renewal application can constitute a violation of Section 506(d)(3) 
* * * We do not agree, however, that allowing the filing of a late 
renewal application violates Section 506(d)(3). Instead, we believe 
this provision is sufficiently flexible to allow consideration of 
untimely application, so long as the permit renewal procedures, 
which include public participation, are properly followed.
65 FR 29951 (Emphasis in original)
    We believe this rationale applies with equal force here. 
Pennsylvania's program already contains an advance filing requirement 
at 25 Pa. Code 86.55(c). Failure to comply with this provision can 
constitute a violation, just as failure to comply with the 120 day 
filing requirement can constitute a violation of SMCRA under a Federal 
program. Moreover, this requirement is more stringent than the Federal 
one since it requires renewal applications to be filed at least 180 
days prior to expiration. Therefore, we conclude that it is unnecessary 
for Pennsylvania to incorporate a 120 day advance filing requirement. 
Neither the Federal nor the

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State provision expressly bars the renewal of a permit if the 
application was not timely filed. We find that subsection 86.55(j) is 
not inconsistent with subsection 506(d)(3) of SMCRA or with 30 CFR 
774.15(b). Finally, Pennsylvania's program requires that all renewal 
applications be subject to the public notice and participation 
requirements of 25 Pa. Code 86.31. See 25 Pa. Code 86.55(d).
    For the above-stated reasons, we find that the required amendment 
at 30 CFR 938.16(qqq) is no longer necessary and the Pennsylvania 
program is consistent with SMCRA and the Federal regulations, and it 
will be removed.

30 CFR 938.16(ttt). Noncoal Waste In Refuse Piles

    Required Amendment: OSM required Pennsylvania to submit a proposed 
amendment to 25 Pa. Code 88.321 and 90.133, or otherwise amend its 
program, to require that no noncoal waste be deposited in a coal refuse 
pile or impounding structure. (See 62 FR 60177). PADEP requested the 
removal of 30 CFR 938.16(ttt), by letter dated February 7, 2006 
(Administrative Record No. PA 803.37), on the fact that the 
Pennsylvania program does not allow for noncoal waste to be deposited 
in a coal refuse pile or impounding structure.
    First, as we noted in the proposed rule for this rulemaking, the 
requirement to amend Section 88.321 was improperly imposed, because 
anthracite mining performance standards, including 25 Pa. Code 88.321, 
are exempt from the obligation to comply with SMCRA's performance 
standards, by virtue of section 529 of SMCRA. See 71 FR 29602. 
Therefore, we are removing that portion of the required amendment 
codified at 30 CFR 938.16(ttt).
    With respect to the requirement to amend 25 Pa. Code 90.133, PADEP 
explains in their letter of February 7, 2006, that protections are 
provided throughout the Pennsylvania program prohibiting noncoal 
materials from being deposited on a coal refuse site or impounding 
structure. For a full explanation of Pennsylvania's explanation and 
rationale for requesting removal of this required amendment, see the 
May 23, 2006, proposed rule notice (71 FR 29602).
    In our November 7, 1997, final rule, we were concerned that Sec.  
90.133 appears to prohibit placement of the listed materials, and other 
materials with low ignition points, in refuse piles or impoundment 
structures. The Federal regulation at 30 CFR 816.89(c), on the other 
hand, expressly prohibits the placement of any noncoal mine waste in 
these two areas. See 62 FR 60274.
    PADEP contends that the reference to listed materials, and others 
with low ignition points, does not imply that other noncoal waste are 
acceptable for disposal at coal refuse sites. Rather, PADEP asserts 
that the inclusion of this language was ``meant to emphasize the need 
to restrict the presence of combustible materials that could cause the 
coal refuse to ignite.'' (Id). Furthermore, PADEP asserts that Sec.  
90.133 does require that all noncoal wastes be disposed of in 
accordance with the State's Solid Waste Management Act. That statute, 
found at 35 P.S. 6018.101 et seq., however, does not expressly prohibit 
noncoal wastes from being placed in coal refuse piles or impounding 
structures.
    Based on the above-stated analysis, OSM has reviewed this proposed 
amendment and determined that the Pennsylvania program does not include 
any express prohibitions against placement of any noncoal waste 
materials in a coal refuse pile or impoundment similar to those found 
at 30 CFR 816.89(c). Because of this we cannot remove the required 
amendment at 30 CFR 938.16(ttt) at this time.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment in a Federal Register 
Notice dated May 23, 2006 (71 FR 29597-29604).
    We received specific comments from the Citizens for Pennsylvania's 
Future (Pennfuture) stating that OSM ignored its duty, which they 
assert was in existence until a regulatory change effective October 20, 
2005, to initiate action under 30 CFR part 733 (part 733) after 
Pennsylvania failed to submit amendments, or at least descriptions 
thereof, within 60 days of the promulgation of the requirements to 
submit program amendments to address deficiencies. In support of its 
contention, Pennfuture cited 30 CFR 732.17(f)(2), State program 
amendments, which states that: ``If the State regulatory authority does 
not submit the proposed amendment or description and the timetable for 
enactment within 60 days from the receipt of the notice, or does not 
subsequently comply with the submitted timetable, or if the amendment 
is not approved under this section, the Director shall begin 
proceedings under 30 CFR part 733 to either enforce that part of the 
State program affected or withdraw approval, in whole or in part, of 
the State program and implement a Federal program.''
    In response, we note that the issue of whether OSM should have 
initiated part 733 proceedings against Pennsylvania for its failure to 
timely comply with the requirements at 30 CFR 938.16(r), (eee), (ggg), 
(kkk), (lll), (qqq), and (ttt) is simply not germane to this 
rulemaking. Rather, the questions presented to OSM are whether the 
various rationales put forth by OSM, or the PADEP, to support removal 
of these requirements are sufficient to justify findings that the 
Pennsylvania program is consistent with SMCRA and the Federal 
regulations in the areas addressed by the required amendments intent 
and language. We make determinations to remove these required 
amendments where we find that the answer to this question is yes. This 
finding makes the issue of whether part 733 action should have been 
taken moot. Where we find that the rationales are not sufficient to 
justify findings that the Pennsylvania program is consistent with SMCRA 
and the Federal regulations, we will act in accordance with 30 CFR 
732.17, which now allows us some discretion as to whether to initiate 
action under part 733. Under either outcome, the former provision at 30 
CFR 732.17(f)(2) would be inapplicable.
    Pennfuture also stated that neither Pennsylvania's rationale for 
removal of some of the requirements, or OSM's rationale supplied on its 
own initiative to justify the removal of the remaining requirements, 
were submitted in a timely manner. In support of this argument, 
Pennfuture cited section 526(a)(1) of SMCRA, 30 U.S.C. 1276(a)(1), 
which requires that any petition for review of an OSM rulemaking 
decision with respect to a State program must be filed within 60 days, 
unless ``the petition is based solely on grounds arising after the 
sixtieth day.'' Pennfuture contends that OSM is violating this 
provision because the rationale provided herein by OSM and the PADEP 
existed, in each instance, at the time OSM imposed the required 
amendments. Thus, Pennfuture argues, section 526(a)(1) bars both OSM 
and the PADEP from reconsideration of the rationale that led to the 
imposition of those required amendments. It asserts that to allow the 
State ``a second bite at the apple'' would ignore the doctrine of 
administrative finality and create a slippery slope. According to 
Pennfuture, OSM would then be obligated to entertain a request by any 
party for the ``rescission of, or the addition of conditions to, OSM's 
approval of program amendments, even where those requests are not based 
solely on grounds

[[Page 54594]]

that arose after the 60-day deadline for filing a petition for review 
expired.''
    We disagree with Pennfuture's interpretation because its argument 
fails to recognize the distinction between the judicial review 
opportunity mandated by SMCRA and OSM's discretion to reconsider its 
previously held position. Section 526(a)(1) prescribes the conditions 
that must be met in order for an entity to obtain judicial review of a 
State program amendment decision. If the party meets the criteria of 
this section, judicial review is mandatory; i.e., OSM has no discretion 
to prevent review of its decision in this instance. It simply does not 
follow, however, that this statutory mandate also prevents OSM from 
electing to reconsider a decision, and its underlying rationale, even 
where that reconsideration is based on information or argument that 
existed when the original decision is made.
    It is a long established precedent that an agency may reverse its 
position, so long as it provides sufficient rationale for the change. 
See, e.g., Pennsylvania Dept. of Public Welfare v. United States, 781 
F.2d 334, 339 (3rd Cir. 1986) (``An agency may change course, as long 
as it supplies a reasoned explanation for the shift; the same 
`arbitrary and capricious' standard is applied on review of the new 
action.''). We believe that sufficient rationale is set forth in this 
rulemaking to justify our removal of each of the subject required 
amendments.
    We agree with Pennfuture that our action today may encourage 
parties to demand rescission of, or additional conditions placed upon, 
previous State program amendment approvals. Nevertheless, persons have 
always been free to ask OSM to reconsider a decision. Where OSM 
receives such a request it will review the information and arguments in 
support thereof then exercise its discretion to grant or deny it. Such 
discretion must be employed reasonably, of course, just as it was in 
each of the instant matters.
    Pennfuture argues that Pennsylvania's clarification of the approved 
program required by 30 CFR 938.16(r) must be incorporated into the 
State's approved program, perhaps in the form of a technical guidance 
document or written policy explaining how the State assesses ICPs. We 
disagree, because Pennsylvania's clarifications, and our rationale for 
removing the required amendment, are based on statutory and regulatory 
provisions contained in the State's approved program.
    Pennfuture also asserts that OSM is wrong to state that the 
required amendment at 938.16(kkk) was rendered moot by the earlier 
promulgation of OSM's ``road rule'' in 1988. A matter is generally 
rendered moot, Pennfuture contends, by subsequent, rather than 
previous, events. Thus, the 1993 required amendment cannot have been 
mooted by the 1988 rulemaking.
    In response, we agree that we could have selected a more 
appropriate adjective to describe the vitality, or lack thereof, imbued 
within 30 CFR 938.16(kkk), pertaining to the anthracite regulatory 
definition of ``affected area.'' Instead, we might have said that this 
required amendment was mistakenly imposed, since the Pennsylvania 
program contains a ``road rule'' consistent with OSM's 1988 regulation. 
Indeed, we have set forth this precise rationale in the finding, 
contained herein, that the required amendment can be removed.
    Pennfuture contends that OSM correctly imposed the required 
amendment at 30 CFR 938.16(lll) because Pennsylvania made a deliberate 
choice to define ``access road'' differently in its anthracite 
regulations, since the program also contains ``access road'' 
definitions for surface mining and coal refuse disposal operations. 
Thus, Pennfuture argues, Pennsylvania intended that its anthracite 
definition of ``access road'' be different in scope than its 
counterpart definition for other types of mining. Finally, Pennfuture 
states that there is no indication that the definition of ``road'' in 
Sec.  88.1, which we now rely upon to support removal of the required 
amendment, differed in any respect when the required amendment was 
imposed in 1993. At most, the definition of ``road'' creates an 
ambiguity about the scope of ``access roads'' so OSM acted reasonably 
in 1993 to remove that ambiguity.
    In response, we note that had we taken the definition of ``road'' 
into account in 1993, we would not have imposed the required amendment. 
That definition, which has no counterpart in Chapter 87 (surface 
mining) or in Chapter 90 (coal refuse disposal), explicitly includes 
``access roads'', and expressly includes all roads that are ``improved 
or maintained'' for use in coal exploration or surface coal mining 
activities. Thus, we believe there is no ambiguity with respect to the 
scope of regulated access roads in Pennsylvania, and have consequently 
determined that the required amendment at 30 CFR 938.16(lll) is 
unnecessary.
    Pennfuture also contends that OSM cannot rely on the rationale from 
the May 10, 2000, Kentucky program rulemaking (65 FR 29949) to justify 
removal of the required amendment at 30 CFR 938.16(qqq). We disagree, 
for the reasons set forth in our finding above. Both Kentucky's and 
Pennsylvania's programs contain advance filing requirements for permit 
renewal applications. In Kentucky, we concluded that failure to adhere 
to its requirement did not bar the issuance of permit renewals. Because 
we reach the same conclusion today with respect to Pennsylvania, we 
further conclude that the required amendment creates a superfluous, and 
therefore unnecessary, obligation.
    Finally, Pennfuture asserts that the technical guidance document 
referred to in the proposed rule as a rationale to remove 30 CFR 
938.16(qqq), must be made part of the approved program. We disagree 
with this perspective. Although the document is not part of the 
Pennsylvania program, it is an extension of how the program is 
implemented. Moreover, our finding above does not rely upon the 
technical guidance document, but on the regulation itself.

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 
(Administrative Record No. PA 803.40). The Mine Safety and Health 
Administration (MSHA), District 1 and 2 responded (Administrative 
Record Nos. PA 803.42 and PA 803.41) with no specific comments to the 
removal of these required amendments.

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 802.31). The EPA, 
Region III, responded that they had determined that OSM's removal of 
the required amendments would not be inconsistent with the Clean Water 
Act (Administrative Record No. PA 803.44).

V. OSM's Decision

    Based on the above findings, we are removing the required 
amendments at 30 CFR 938.16 (r), (eee), (ggg), (kkk), (lll), and (qqq). 
We are also codifying a disapproval of the word ``augmented'', which is 
contained in the last sentence of 25 Pa. Code 86.151(d).
    To implement this decision, we are amending the Federal regulations 
at 30 CFR 938.12, 938.15 and 938.16 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 State's program demonstrate that the State 
has the capability of carrying out the

[[Page 54595]]

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. 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.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Government

    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 
unfunded mandate.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 11, 2006.
Hugh Vann Weaver,
Acting Regional Director, Appalachian Regional Office.

0
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.

0
2. Section 938.12 is amended by adding new paragraph (d) to read as 
follows:


Sec.  938.12  State statutory, regulatory and proposed program 
amendment provisions not approved.

* * * * *

[[Page 54596]]

    (d) We are not approving the word ``augmented'' in the last 
sentence of subsection 86.151(d) that we found to be less effective on 
April 8, 1993 (58 FR 18154).


Sec.  938.16  [Amended]

0
3. Section 938.16 is amended by removing and reserving paragraphs (r), 
(eee), (ggg), (kkk), (lll), and (qqq).

 [FR Doc. E6-15445 Filed 9-15-06; 8:45 am]
BILLING CODE 4310-05-P