[Federal Register Volume 74, Number 89 (Monday, May 11, 2009)]
[Rules and Regulations]
[Pages 21768-21770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10954]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-148-FOR; OSM-2008-0014]


Pennsylvania Regulatory Program

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

ACTION: Final rule: clarification.

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SUMMARY: We recently approved an amendment to the Pennsylvania 
regulatory program (the Pennsylvania program) under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA or the Act). The changes 
related to blasting for the development of shafts for underground mines 
and other changes to the blasting regulations in the Pennsylvania 
program. After our approval of the amendment, the Pennsylvania 
Department of Environmental Protection (PADEP) requested a 
clarification of our findings in support of that approval. Therefore,

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OSM is publishing a clarification of our previous findings.

DATES: Effective Date: May 11, 2009.

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

I. Background on the Pennsylvania Program
II. Prior Approval of the Amendment
III. Clarification of OSM's Finding in Support of the Decision
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 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. Prior Approval of the Amendment

    By letter dated June 8, 2006 (Administrative Record No. PA 887.00), 
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.
    OSM approved the amendment in a December 1, 2008, Federal Register 
notice (73 FR 72717). After publication of OSM's decision on the 
submitted amendment, PADEP contacted OSM requesting clarification of 
our characterization of the State's interpretation of 25 Pa. Code 
87.127(a). In a letter dated December 17, 2008 (Administrative Record 
No. PA 887.15), PADEP stated the following:

    In OSM's finding relating to 25 Pa. Code 87.127(a), and the 
Federal counterpart at 30 CFR 817.61, the following statement is 
made: ``PADEP has determined that mine opening blasting conducted 
after the second blast is not subject to all of Pennsylvania's 
blasting regulations, because it is not blasting conducted pursuant 
to a surface coal mining operation, but rather is underground mine 
blasting * * *'' This statement is wrong. Pennsylvania has 
determined that mine opening blasting is not regulated as 
``underground mine blasting.'' Rather the regulation created a new 
category of surface blasting, specifically identified as ``mine 
opening blasting.'' It is subject to all of Pennsylvania's surface 
mining blasting regulations, which specifically allow, that ``mine 
opening blasting conducted after the second blast, for that mine 
opening, may be conducted at any time of day or night * * *.''

    PADEP specifically requested that OSM publish a clarification of 
this statement contained in our approval of the amendment in order to 
correct this error.

III. Clarification of OSM's Finding in Support of Our Decision

    OSM's regulations apply to two categories of blasting: blasting 
associated with surface mining and surface blasting associated with 
underground mining. Our regulations at 30 CFR 817.61(a) specify that 
``Sections 817.61-817.68 apply to surface blasting activities incident 
to underground coal mining, including, but not limited to, initial 
rounds of slopes and shafts.'' The definition of ``mine opening 
blasting'' as proposed by PADEP is ``* * * blasting conducted for the 
purpose of constructing a shaft, slope, drift, or tunnel mine opening 
for an underground mine * * *'' Based upon PADEP's definition, the 
requirements of 30 CFR 816.61-68, which regulate blasting at surface 
mining activities, do not apply. In addition, 30 CFR 817.61-68, 
regarding the regulation of surface blasting incident to underground 
coal mines, apply only to the initial rounds of slope and shaft 
development; blasting conducted subsequent to such activity (i.e. 
within the underground mine) is not regulated under these provisions. 
In our Federal Register notice announcing approval of the program 
amendment OSM stated that ``[w]e find that mine opening blasting after 
the second blast is indeed a reasonable point to terminate full 
regulatory coverage pursuant to 30 CFR 817.61-68.''
    OSM understands that PADEP does not classify mine opening blasting 
as underground mine blasting, but rather as a ``new category of surface 
blasting.'' In addition, OSM understands that PADEP will continue to 
regulate mine opening blasting subsequent to the second blast in 
accordance with the language of the approved program amendment, as well 
as any other applicable provisions of the Pennsylvania Code. In effect, 
the ``new category of surface blasting'' that PADEP described, provides 
for the regulation of blasting, after the initial rounds of slope and 
shaft development, above and beyond that required by SMCRA and the 
corresponding Federal regulations. OSM recognized in its approval of 
the proposed amendment that PADEP was proposing to regulate mine 
opening blasting subsequent to the second blast, and our approval did 
nothing to limit or restrict the State's ability to do so. However, in 
order to alleviate the State's concerns about its interpretation of 25 
Pa. Code 87.127(a), OSM is publishing this clarification.
    This clarification of OSM's finding does not affect our decision to 
approve the Pennsylvania amendment as published in the Federal Register 
on December 1, 2008.

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

[[Page 21770]]

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. 
The basis for this determination is that our decision is on a State 
Regulatory program and does not involve a Federal regulation 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

    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.

    Dated: February 9, 2009.
Thomas D. Shope,
Regional Director Appalachian Region.
[FR Doc. E9-10954 Filed 5-8-09; 8:45 am]
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