[Federal Register Volume 72, Number 24 (Tuesday, February 6, 2007)]
[Proposed Rules]
[Pages 5380-5382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1862]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-149-FOR]


Pennsylvania Regulatory Program

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

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

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SUMMARY: We are announcing receipt of a proposed amendment to the 
Pennsylvania regulatory program (the ``Pennsylvania program'') under 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the 
Act). Pennsylvania proposes to revise its program to exclude coal 
extraction on government-financed construction projects from regulation 
under the surface coal mining regulations. The proposed amendment is 
intended to revise the Pennsylvania program to be consistent with the 
corresponding Federal regulations and to include provisions at its own 
initiative.
    This document gives the times and locations that the Pennsylvania 
program and this amendment 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 March 
8, 2007. If requested, we will hold a public hearing on March 5, 2007. 
We will accept requests to speak at a hearing until 4 p.m., local time 
on February 21, 2007.

ADDRESSES: You may submit comments, identified by ``PA-149-FOR'', by 
any of the following methods:
     E-mail: [email protected]. Include ``PA-149-FOR'' in the 
subject line of the message;
     Mail/Hand Delivery: Mr. George Rieger, Chief, Pittsburgh 
Field Division Office of Surface Mining Reclamation and Enforcement 415 
Market Street, Room 304, Harrisburg, PA 17101 Telephone: (717) 782-
4036.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
docket number ``PA-149-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 
amendment, 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 amendment 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, P.O. Box 8461, Harrisburg, 
Pennsylvania 17105-8461, Telephone: (717) 787-5015.

FOR FURTHER INFORMATION CONTACT: Mr. George Rieger, Chief, Pittsburgh 
Field Division, 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, 938.13, 938.15 
and 938.16.

II. Description of the Proposed Amendment

    By letter dated December 18, 2006 (Administrative Record Number PA 
891.00), Pennsylvania sent us a proposed amendment to its program under 
SMCRA (30 U.S.C. 1201 et seq.). The amendment adds new section 25 
Pennsylvania Code (PA Code) 86.6 which provides for the exemption from 
the permitting requirements of 25 PA Code Chapters 87 and 88 when 
extraction of coal is incidental to government-financed construction or 
government-financed reclamation projects and specified requirements are

[[Page 5381]]

met. The Pennsylvania Department of Environmental Protection (PADEP or 
Department) believes that this amendment is consistent with the Federal 
program and is no less effective than the Federal regulations at 30 CFR 
part 707 (Exemption for Coal Extraction Incident to Government-Financed 
Highway or Other Construction).
    The full text of the proposed amendment is quoted below:

    Sec.  86.6 Extraction of coal incidental to government-financed 
construction or government-financed reclamation projects.
    (a) Extraction of coal incidental to government-financed 
construction or government-financed reclamation projects is exempt 
from the permitting requirements of the Surface Mining Conservation 
and Reclamation Act Construction [sic] and this chapter as it 
relates to surface mining activities and operations, and Chapters 87 
and 88 (relating to surface mining of coal; and anthracite coal) if 
the following conditions are met:
    (1) During the project site selection process and prior to 
development of final construction plans or reclamation plans for 
projects located within coal bearing regions, the government entity 
financing the construction or reclamation has provided the 
Department with an opportunity to provide comments on the potential 
environmental impacts of the project.
    (2) The extraction of coal is necessary to enable the 
construction or reclamation to be accomplished. Only that coal 
extracted from within the right-of-way, in the case of a road, 
railroad, utility line or other similar construction, or within the 
boundaries of the area directly affected by other types of 
government-financed construction or government-financed reclamation, 
may be considered incidental to that construction or reclamation.
    (3) The construction or reclamation is funded by a Federal, 
Commonwealth, county, municipal, or local unit of government, or a 
department, bureau, agency, or office of the unit which, directly or 
through another unit of government, finances the construction or 
reclamation.
    (4) The construction or reclamation is funded 50% or more by 
funds appropriated from the government unit's budget or obtained 
from general revenue bonds. Funding at less than 50% may qualify if 
the construction is undertaken as a Department-approved reclamation 
contract or project.
    (5) The construction or reclamation is performed under a bond, 
contract and specifications that substantially provide for and 
require protection of the environment, reclamation of the affected 
area, and handling of excavated materials in a manner consistent 
with the acts and regulations implementing the acts.
    (6) The Department has approved the standards and specifications 
for protection of the environment that will apply to the project 
when potential adverse environmental impacts have been identified.
    (b) Construction funded through government financing agency 
guarantees, insurance, loans, funds obtained through industrial 
revenue bonds or their equivalent or in-kind payments do not qualify 
as government-financed construction.
    (c) A person extracting coal incidental to government-financed 
construction or government-financed reclamation who extracts more 
than 250 tons of coal or affects more than 2 acres shall maintain on 
the site of the extraction operation and make available for 
inspection the following documents:
    (1) A written description of the construction or reclamation 
project.
    (2) A map showing the exact location of the construction or 
reclamation, right-of-way or the boundaries of the area which will 
be directly affected by the construction or reclamation.
    (3) A statement identifying the government agency that is 
providing the financing and the kind and amount of public financing, 
including the percentage of the entire construction costs 
represented by the government financing.
    (4) When the area delineated in paragraph (2) is wholly or 
partially within an area designated unsuitable for mining by the EQB 
[Environmental Quality Board] under section 86.130 (relating to 
areas designated as unsuitable for mining), a copy of the detailed 
report required by section 86.124(e) (relating to procedures: 
Initial processing, recordkeeping and notification requirements).
    (d) Government-financed construction projects and government-
financed reclamation shall comply with Chapters 91-96, 102 and 105.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Pennsylvania program.

Written Comments

    Send your written 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 may 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 identified above 
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-149-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 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 
February 21, 2007. 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

[[Page 5382]]

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 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

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute major Federal action within the meaning of section 102(2)(C) 
of the National Environmental Policy Act (42 U.S.C. 4332(2)(c). A 
determination has been made that such decisions are categorically 
excluded from the NEPA process (516 DM 13.5(A)(2)).

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 has determined 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 amendment 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. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. 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 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 a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: January 12, 2007.
H. Vann Weaver,
Acting Regional Director, Appalachian Region.
[FR Doc. E7-1862 Filed 2-5-07; 8:45 am]
BILLING CODE 4310-05-P