[Federal Register Volume 73, Number 63 (Tuesday, April 1, 2008)]
[Proposed Rules]
[Pages 17268-17270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6715]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-150-FOR; OSM-2008-0002]


Pennsylvania Regulatory Program

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

ACTION: Proposed rule; removal of required amendment.

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SUMMARY: We are announcing receipt of a request to remove a required 
amendment to the Pennsylvania regulatory program (the ``Pennsylvania 
program'') under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). In response to a required program amendment 
codified in the Federal regulations at 30 CFR 938.16(uuu), Pennsylvania 
has submitted rationale that it believes supports its position that 
current program provisions are sufficient to render its program no less 
effective than the Federal requirements and, therefore, no amendment is 
necessary. The required amendment pertains to regulatory exemptions for 
coal extraction incidental to the extraction of other minerals.
    This document gives the times and locations that the Pennsylvania 
program and this request 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 May 1, 
2008. If requested, we will hold a public hearing on April 28, 2008. We 
will accept requests to speak at a hearing until 4 p.m., local time on 
April 16, 2008.

ADDRESSES: You may submit comments by either of the following two 
methods:
    Federal eRulemaking Portal: http://www.regulations.gov. The 
proposed rule has been assigned Docket ID: OSM-2008-0002. If you would 
like to submit comments through the Federal eRulemaking Portal, go to 
http://www.regulations.gov and do the following. Click on the 
``Advanced Docket Search'' button on the right side of the screen. Type 
in the Docket ID OSM-2008-0002 and click the ``Submit'' button at the 
bottom of the page. The next screen will display the Docket Search 
Results for the rulemaking. If you click on OSM-2008-0002, you can view 
the proposed rule and submit a comment. You can also view supporting 
material and any comments submitted by others.

Mail/Hand Delivery/Courier: Mr. George Rieger, Chief, Pittsburgh Field 
Division, Office of Surface Mining Reclamation and Enforcement, 415 
Market Street, Room 304, Harrisburg, PA 17101.

    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section 
of this document.
    Docket: In addition to obtaining copies of documents at http://www.regulations.gov, information may also be obtained at the addresses 
listed below 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.

Mr. George Rieger, Chief, Pittsburgh Field Division, Office of Surface 
Mining Reclamation and Enforcement, 415 Market Street, Room 304, 
Harrisburg, PA 17101, (717) 782-4036. E-mail: [email protected].
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. E-mail: [email protected].

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 Request
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 Request

    By letter dated December 18, 2007 (Administrative Record Number PA 
892.00), Pennsylvania sent us a response to a program amendment that 
was required by OSMRE in a final rule notice published in the Federal 
Register on November 7, 1997 (62 FR 60177) and codified in the Federal 
Regulations at 30 CFR 938.16(uuu). Pennsylvania states that it believes 
that current Pennsylvania program regulations are sufficient to render 
its program no less effective than the Federal requirements at 30 CFR 
702.17(c)(2) and (c)(3), Exemption for Coal Extraction Incidental to 
the Extraction of Other Minerals and, therefore, a program amendment is 
not necessary.
    This required amendment provided that Pennsylvania submit an 
amendment to provide counterparts to the Federal regulations at 30 CFR 
702.15(d), (e), (f), and 702.17(c)(2), and (c)(3). The Federal 
regulations pertain to (1) conditions of exemption and right of 
inspection and entry; and (2) revocation and enforcement. Pennsylvania 
submits that its regulatory program already

[[Page 17269]]

contains counterparts to the Federal regulations and, therefore, is as 
effective as the Federal regulations pertaining to incidental coal 
extraction. Pennsylvania requests that we remove the condition found at 
30 CFR 938.16(uuu) on this basis.
    In summary, the Federal regulations and PADEP rationale are 
provided as follows:
    Federal Regulations: 30 CFR 702.15, Conditions of exemption and 
Right of Inspection and Entry, provides the following with regard to 
exemptions for coal extraction incidental to the extraction of other 
minerals:
    (d) Authorized representatives of the regulatory authority and the 
Secretary shall have the right to conduct inspections of operations 
claming exemption under this part.
    (e) Each authorized representative of the regulatory authority and 
the Secretary conducting an inspection under this part:
    (1) Shall have a right of entry to, upon, and through any mining 
and reclamation operations without advance notice or search warrant, 
upon presentation of appropriate credentials;
    (2) May, at reasonable times and without delay, have access to and 
copy any records relevant to the exemption; and
    (3) Shall have a right to gather physical and photographic evidence 
to document conditions, practices, or violations at a site.
    (f) No search warrant shall be required with respect to any 
activity under paragraphs (d) and (e) of this section, except that a 
search warrant may be required for entry into a building.
    PADEP Response: OSM's review of 25 Pennsylvania Code (Pa Code) 
Section 86.5 in the 1997 rulemaking did not include a discussion of the 
need for 25 Pa Code Section 86.5 to be revised to add counterparts to 
the Federal regulations at 30 CFR 702.15(d), (e), and (f). Thus, it is 
not clear why OSM considered 25 Pa Code Section 86.5 to be less 
effective than the Federal regulations with respect to the right to 
conduct inspections and right of entry for operations extracting coal 
incidental to surface mining.
    Pennsylvania's non-coal mining regulations in 25 Pa Code Chapter 
77, (which persons claiming exemption under 25 Pa Code Section 86.5 are 
subject to pursuant to 25 Pa Code Section 86.5(a)), provide 
counterparts to the Federal regulations at 30 CFR 702.15(d), (e), and 
(f). Furthermore, it provides broader authority to Pennsylvania's 
authorized representatives given that they may enter a building at a 
surface mine site for purposes of inspection or investigation without 
being required to obtain a search warrant.
    Federal Regulations: 30 CFR 702.17(c)(2) and (c)(3), Revocation and 
Enforcement, provides that:
    (c)(1) If the regulatory authority finds that an operator has not 
demonstrated that activities conducted in the mining area qualify for 
the exemption, the regulatory authority shall revoke the exemption and 
immediately notify the operator and intervenors. If a decision is made 
not to revoke an exemption, the regulatory authority shall immediately 
notify the operator and intervenors.
    (2) Any adversely affected person may request administrative review 
of a decision whether to revoke an exemption within 30 days of the 
notification of such decision in accordance with procedures established 
under 43 CFR 4.1280 when OSM is the regulatory authority or under 
corresponding state procedures when a State is the regulatory 
authority.
    (3) A petition for administrative review filed under 43 CFR 4.1280 
or under corresponding State procedures shall not suspend the effect of 
a decision whether to revoke an exemption.
    PADEP's Response: OSM's required amendment at 30 CFR 938.16(uuu) 
with respect to Pennsylvania counterparts for 30 CFR 702.17(c)(2) and 
(c)(3) also was not discussed in the 1997 rulemaking. More importantly, 
this part of the required amendment actually conflicts with OSM's own 
findings in the 1997 rulemaking.
    In the 1997 rulemaking, OSM determined that 25 Pa Code Section 
86.5(o) is identical in meaning to 30 CFR 702.17(c)(2); 25 Pa Code 
Section 86.5(o) is identical in meaning to 30 CFR 702.17(c)(2); and 
that 25 Pa Code Section 86.5(n) is identical in meaning to 30 CFR 
702.17(c)(3). See Federal Register (62 FR 60169-70 and Table A). OSM 
then concluded: ``Because the above proposed revisions (listed in Table 
A) are identical in meaning to the corresponding Federal regulations, 
the Director finds that Pennsylvania's proposed rules are no less 
effective than the Federal rules.'' Thus, the portion of 30 CFR 
938.16(uuu) pertaining to counterparts to 30 CFR 702.17(c)(2) and 
(c)(3) appears to be an error.
    In any event, Pennsylvania submits that statutory and regulation 
sections regarding the right of appeal to the Pennsylvania 
Environmental Hearing Board provide counterparts to 30 CFR 702.17(c)(2) 
and (c)(3). These sections are the Environmental Hearing Board (EHB) 
Act at 35 Pennsylvania Statute 7511-7516; 25 Pa Code Chapter 1021 (EHB 
procedural rules); 25 Pa Code Section 1021.2 (defining ``action'' of 
the department), and Section 1021.51 (commencement of an appeal). 
Therefore, Pennsylvania submits that its regulatory program already 
contains counterparts to the Federal regulations at 30 CFR 702.17(c)(2) 
and (c)(3), which are as effective as the Federal regulations.

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.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

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 
April 16, 2008. 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

[[Page 17270]]

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 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 8.4.A).

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.). 
In making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the analysis 
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: February 29, 2008.
Thomas D. Shope,
Regional Director, Appalachian Region.
 [FR Doc. E8-6715 Filed 3-31-08; 8:45 am]
BILLING CODE 4310-05-P