[Federal Register Volume 80, Number 201 (Monday, October 19, 2015)]
[Rules and Regulations]
[Pages 63125-63130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26477]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[SATS No. PA-154-FOR; Docket ID: OSM-2010-0002; S1D1S SS08011000 
SX064A000 167S180110 S2D2S SS08011000 SX064A000 16XS501520]


Pennsylvania Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving 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 amendment that we 
are approving involves a statutory amendment to Pennsylvania's Coal 
Refuse Disposal Control Act (CRDCA). The amendment adds another 
category of sites considered as preferred when selecting a location for 
the placement of coal refuse.

DATES: Effective Date: This rule is effective October 19, 2015.

FOR FURTHER INFORMATION CONTACT: Ben Owens, Chief, Pittsburgh Field 
Division, Office of Surface Mining Reclamation and Enforcement, 
Telephone: (412) 937-2827, email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Description and Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE'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.'' 30 U.S.C. 1253(a)(1) and (7).
    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. We are providing the following background 
information as it is referenced in our findings and/or response to 
comments.

Background: Pennsylvania's Coal Refuse Disposal Control Act (CRDCA)

    CRDCA and Preferred Sites: Section 4.1(a) of the CRDCA, 52 P.S. 
30.54a(a) provides site selection criteria for determining where to 
place coal refuse following mining activities. The Act provides for 
coal refuse to be disposed on a ``preferred site'' unless it can be 
demonstrated to the Pennsylvania Department of Environmental Protection 
(PADEP) that another site is more suitable based upon engineering, 
geology, economics, transportation systems, and social factors, and is 
not adverse to the public interest.
    Pennsylvania provided various justifications for the inclusion of 
such provisions: It limits sites eligible to receive coal refuse 
placement by prohibiting placement in certain environmentally sensitive 
areas; it encourages disposal of coal refuse on

[[Page 63126]]

areas previously affected by coal mining; and it is better to have a 
few large refuse disposal areas than numerous small coal refuse 
disposal sites. The CRDCA provided that areas that have been previously 
affected by mining activities within a specific area of the source mine 
are preferred for coal refuse disposal unless the applicant 
demonstrates that another site is more suitable based on site-specific 
conditions.
    Pennsylvania had defined a preferred site as one of the following: 
(1) A watershed polluted by acid mine drainage; (2) a watershed 
containing an unreclaimed surface mine, but which has no mining 
discharge; (3) a watershed containing an unreclaimed surface mine with 
discharges that could be improved by the proposed coal refuse disposal 
operation; (4) unreclaimed coal refuse piles that could be improved by 
the proposed coal refuse disposal operation; and (5) other unreclaimed 
areas previously affected by mining activities. Section 4.1(a), 52 P.S. 
30.54a(a) of CRDCA.
    Permitting Pennsylvania Coal Refuse Disposal Sites: The CRDCA at 
section 4.1 and the regulations provide a two-step process for the 
permitting of coal refuse disposal sites. The first step is a pre-
application site selection process intended to steer applicants to 
areas previously disturbed by mining. In the absence of previously 
disturbed sites, the site selection process requires an evaluation of 
nearby candidate sites with the goal of choosing the site that results 
in minimal adverse impacts. Following Pennsylvania's approval of the 
applicant's site selection, the applicant proceeds to the second step, 
which involves preparing and submitting a permit application for the 
selected site. Pennsylvania's regulations, at 25 Pa. Code 90.5, outline 
the need to conduct the mandatory site selection step prior to applying 
for a permit for coal refuse disposal activities, and 25 Pa. Code 90.3 
and 90.11 through 90.50 outline the coal refuse disposal permitting 
requirements.
    Pennsylvania's Coal Refuse Disposal Program Guidance [Protection of 
Endangered Species]: The Federal regulations at 30 CFR 816/817.97, 
concerning the protection of fish and wildlife and related values, 
require the minimization of disturbance and adverse impacts and 
enhancement where practicable, and consultations with State and Federal 
fish and wildlife resources agencies. See Other Background Information 
(Endangered Species for additional information). Pennsylvania's Coal 
Refuse Disposal Program Guidance (CRDPG), effective February 23, 1998, 
was intended to further clarify what PADEP stated in a March 8, 1996, 
letter to the Environmental Protection Agency concerning the 
implementation of section 4.1(b) of the CRDCA. The CRDPG specifically 
clarifies the intended implementation of section 4.1(b) related to 
threatened or endangered species. Pennsylvania's policy concerning the 
implementation of section 4.1(b) is as follows:
    With respect to preferred sites, Pennsylvania's regulations provide 
that Pennsylvania will not approve (via the site selection process, See 
25 Pa. Code Sec.  90.202(e)(7)) or permit (via the permitting process) 
a site that is known or likely to contain Federally listed threatened 
or endangered species, unless Pennsylvania concludes and the United 
States Fish and Wildlife Service (USFWS) concurs that the proposed 
activity is not likely to adversely affect Federally listed threatened 
or endangered species or result in the ``take'' of Federally listed 
threatened or endangered species in violation of section 9 of the 
Endangered Species Act.
    OSMRE Approval of CRDCA Section 4.1: We approved section 4.1 of the 
CRDCA (section noted above), Site Selection, on April 22, 1998, finding 
that while there are no direct Federal counterparts to the statutory 
language, the establishment of criteria to be used for selecting sites 
for coal refuse disposal is not inconsistent with SMCRA. See 30 U.S.C. 
1202(d). Pennsylvania's rationale for encouraging coal mining 
activities that will result in the improvement of previously mined 
areas with preexisting pollutional discharges is reasonable and not 
inconsistent with SMCRA at section 102, concerning the purposes of 
SMCRA. See 63 FR 19802.

II. Description and Submission of the Amendment

    By letter dated February 24, 2010 (Administrative Record No. PA 
837.111), Pennsylvania sent us an amendment to its program under SMCRA 
(30 U.S.C. 1201 et seq.). Pennsylvania submitted the amendment to 
include changes made at its own initiative. The changes involve a 
recent statutory amendment to Pennsylvania's CRDCA, 52 P.S., Section 
30.51 et seq.
    With this amendment, Pennsylvania proposed a revision adding 
another category of sites to the list of ``preferred sites'' currently 
found in section 4.1(a). The proposed addition (subsection 4.1(a)(6)) 
would designate an ``area adjacent to or an expansion of an existing 
coal refuse disposal site'' as a preferred site.
    In its submission, Pennsylvania indicates this amendment should be 
approved as consistent with Federal requirements for the following 
reasons:
    (1) Counterpart Federal Regulations: There is no counterpart to 
section 4.1 of the CRDCA contained either in SMCRA or in OSMRE's 
regulations implementing Federal SMCRA;
    (2) Coal Refuse Disposal Control Act: The amendment is consistent 
with the ``findings and declaration of policy'' in section 1 of the 
CRDCA, which states that: The accumulation and storage of coal refuse 
material can cause a condition which fails to comply with the 
established rules, regulations, or quality standards adopted to avoid 
air or water pollution and can create a danger to persons, property, or 
public roads or highways, either by reason of shifting or sliding, or 
by exposing persons walking onto the refuse to the danger of being 
burned. In order to minimize the exposure to these conditions and 
dangers, it is better to have a few large coal refuse disposal sites as 
opposed to numerous small coal refuse disposal sites. 52 P.S. 30.51(1);
    (3) Pennsylvania Regulations--Chapter 86: All coal refuse disposal 
permit applications must comply with chapter 86 (regulations that apply 
to all coal mining activities); thus, permitting requirements remain 
unchanged by this statutory amendment. See 25 Pa. Code chapter 86;
    (4) Pennsylvania Regulations--Chapter 90: All coal refuse disposal 
permit applications must comply with chapter 90 (regulations that apply 
to coal refuse disposal activities); the site-selection process 
established by the CRDCA is in addition to these requirements. See 25 
Pa. Code chapter 90; and
    (5) Species-specific Protective Measures: All coal refuse disposal 
permit applications must comply with any applicable species-specific 
protective measures developed by the USFWS and Pennsylvania's mining 
regulatory program to minimize anticipated incidental take of 
threatened or endangered species; thus, species-specific protective 
measures remain unaffected by the amendment.

III. OSMRE's Findings

    For the reasons set forth below, we are approving the amendment 
request under SMCRA at 30 U.S.C. 1253, and the Federal regulations at 
30 CFR 732.15 and 732.17.
    Federal Counterparts: Five categories of preferred sites in section 
4.1(a) were approved by OSMRE on April 22, 1998. See 63 FR 19802. As we 
stated in that notice, there was no direct Federal

[[Page 63127]]

counterpart to the proposed State language. We further noted that the 
establishment of criteria to be used for selecting sites for coal 
refuse disposal is not itself inconsistent with the intent of SMCRA. 
The Federal regulations do not include specific criteria for 
establishing coal refuse disposal areas. Allowing refuse disposal on 
areas adjacent to or an expansion of an existing coal refuse disposal 
site, provided that all other environmental and safety requirements are 
met, is not inconsistent with section 102(d) of SMCRA, 30 U.S.C. 
1202(d), which requires surface coal mining operations to be conducted 
so as to protect the environment. That same rationale applies to our 
approval of the addition of the sixth category.
    Consistent with CRDCA Policy: We note that the five preferred site 
categories previously identified in the CRDCA involve watershed areas 
previously affected by coal mining; other unreclaimed areas previously 
affected by mining activities; and unreclaimed coal refuse disposal 
sites that could be improved by the proposed coal refuse disposal 
operation. While the additional criterion that is the subject of this 
amendment would allow a previously undisturbed site to be deemed 
``preferred,'' we note that the addition of ``an area adjacent to or an 
expansion of an existing coal refuse disposal site'' to the categories 
of ``preferred'' sites is consistent with the CRDCA policy as it would 
expand an already existing coal refuse disposal site, rather than 
create a new one. Also, adding this category would minimize the need to 
increase the number of coal refuse disposal sites.
    Pennsylvania Regulations: As mentioned above, preferred sites are 
subject to all the permitting requirements established to ensure 
environmental protection. Once the selection of a site has been 
approved, an applicant must submit a site development plan that meets 
the informational requirements, permitting requirements, and 
performance standards in chapter 90, and also meets the requirements of 
chapter 86. The permitting regulations at chapter 86.31(c)(4) require 
Pennsylvania to notify Federal, State, and local government agencies 
with jurisdiction over, or an interest in, the area of the proposed 
activities, including, but not limited to, general governmental 
entities and fish and wildlife and historic preservation agencies, upon 
receipt of an application for a mining permit. The regulations at 25 
Pa. Code 90.202(e)(7) regarding site selection, provide that at 
preferred sites known to contain Federally listed threatened or 
endangered species, approval will be granted only when the Department 
concludes, and the USFWS concurs, that the proposed activity is not 
likely to adversely affect Federally listed threatened or endangered 
species or result in the take of Federally listed threatened or 
endangered species in violation of section 9 of the Endangered Species 
Act of 1973, 16 U.S.C. 1538.
    Pennsylvania Technical Guidance Document No. 563-2113-660, Coal 
Refuse Site Selection, further explains how chapter 90.202(e)(7) will 
be administered by PADEP. In the Background section on page 1, the 
guidance states that the ``District Mining Office will encourage 
meetings involving the applicant, the Pa. Fish and Boat Commission, the 
Pa. Game Commission and the U.S. Fish and Wildlife Service at key 
points in the review process, including: Prior to the site selection 
process to discuss the procedures to be used; before defining the 
search area; before selecting the final site; and before developing a 
mitigation plan. The District Mining Office will also solicit input 
from the Pennsylvania office of the U.S. Fish and Wildlife Service, the 
U.S. EPA and the U.S. Army Corps of Engineers during the site selection 
process and the permit application review process.''
    In addition, Pennsylvania asserts that compliance with any 
applicable species-specific protective measures developed by the USFWS 
and Pennsylvania's mining regulatory program to minimize anticipated 
incidental take of threatened or endangered species remains unaffected 
by this program amendment.
    Conclusion: Section 503(a) of SMCRA provides that state regulatory 
program laws must be in accordance with the requirements of SMCRA, and 
the state regulatory program regulations must be consistent with the 
regulations issued pursuant to SMCRA. The term ``in accordance with'' 
is defined at 30 CFR 730.5 as ``must be no less stringent than, meet 
the minimum requirements of and include all applicable provisions of 
[SMCRA].'' Section 505(b) of SMCRA, 30 U.S.C. 1255(b), further provides 
that any state program provision which provides for more stringent land 
use and environmental controls and regulations shall not be construed 
to be inconsistent with SMCRA.
    There are no direct Federal counterparts to the new proposed site 
selection criterion. However, by providing this criterion, and by 
prohibiting, generally, coal refuse disposal operations on non-
preferred sites, Pennsylvania imposes a more stringent environmental 
control of coal refuse disposal operations than is provided in either 
SMCRA or its implementing regulations. Moreover, Pennsylvania will 
continue to apply the Pennsylvania counterparts to the Federal 
permitting and performance standard requirements. Accordingly, for the 
reasons set forth above, OSMRE finds that Pennsylvania's amendment is 
not inconsistent with the provisions of SMCRA. We are, therefore, 
approving this amendment.

IV. Summary and Disposition of Comments

Public Comments

    In the June 21, 2010, Federal Register notice announcing our 
receipt of this amendment, we asked for public comments (75 FR 34962). 
No requests for public meetings were received. We received public 
comments from one organization, Citizens for Pennsylvania's Future 
(PennFuture) on July 21, 2010, (Administrative Record No. 837.118), 
which are discussed below.
    Comment Number 1 (Preparation Activities). PennFuture states that 
OSMRE may not approve a program amendment that would reduce the 
protection of Federally listed threatened and endangered species unless 
and until Pennsylvania amends its regulatory program under SMCRA to 
require that all site preparation activities, including timbering, be 
authorized in advance by the issuance of a mining permit. PennFuture 
provided a summary of a 2010 event whereby timbering activities were 
undertaken by an operator without a coal mining permit (pre-permit 
timbering activities). PennFuture had requested that OSMRE undertake a 
review of this situation. PennFuture asserted that PADEP's response to 
OSMRE's inquiry regarding this event (stating that timbering is not a 
mining activity and, therefore, not subject to permit requirements, 
etc.) is evidence that a programmatic deficiency needs to be corrected. 
PennFuture states that OSMRE must limit its approval of the amendment 
so that, until the programmatic deficiency is corrected, the absolute 
prohibition in section 4.1(b) of the CRDCA, 52 P.S. 30.54a(b) must 
apply to all sites, whether preferred or non-preferred, that are 
``known to contain Federally listed threatened or endangered plants or 
animals.'' The ``absolute prohibition'' PennFuture refers to prohibits 
coal refuse disposal on sites known to contain Federal endangered or 
threatened animals or plants or State threatened or endangered animals, 
unless the site is designated a preferred site. PennFuture is asking 
OSMRE to

[[Page 63128]]

require Pennsylvania to also apply the prohibition to preferred sites 
until the timbering issue is resolved.
    PennFuture's comments address Pennsylvania's assertion in the 
program amendment that compliance with any applicable species-specific 
protective measures developed by the USFWS and Pennsylvania's mining 
regulatory program to minimize anticipated incidental take of 
threatened or endangered species remains unaffected by this program 
amendment. PennFuture's comments also address Pennsylvania's assertion 
in the program amendment that all coal refuse disposal permit 
applicants must implement the measures required to implement the 1996 
Biological Opinion.
    PennFuture refutes these assertions by referencing Pennsylvania's 
actions regarding pre-permit timbering activities undertaken by the 
mining company, which the USFWS found to be beyond the scope of the 
1996 Biological Opinion because it occurred without a SMCRA permit. 
PennFuture asserts that the reason PADEP's implementation of the 1996 
Biological Opinion falls short is its interpretation that timbering is 
not a mining activity, even if it occurs on a site for which a mining 
permit application is pending. Under PADEP's interpretation of the 
State program, timbering is outside the scope of regulated mining 
activities that must be authorized in advance by the issuance of a 
SMCRA-based mining permit. PennFuture further comments that continuing 
to give effect to this interpretation would mean that the 1996 
Biological Opinion would be inapplicable to the activity (timbering) 
presenting the greatest threat to a threatened and endangered species, 
the Indiana Bat, which the Biological Opinion is intended to protect.

OSMRE's Response

    In its February 24, 2010, program amendment submission, PADEP 
asserts that the proposed amendment to the CRDCA does not alter 
provisions that implement the 1996 Biological Opinion, nor does it 
affect compliance with any species-specific protective measures 
developed by the USFWS or Pennsylvania's mining regulatory program. 
There are no aspects of the site selection criteria, including this 
amendment to the criteria that adds to the list of sites deemed 
``preferred,'' that will allow operations to occur outside the scope of 
the approved program that was the basis for the USFWS's decision to 
issue the 1996 Biological Opinion. The mere selection of a site is not 
the equivalent of an authorization to begin coal refuse disposal, or 
any other pre-disposal activities that are likely to adversely affect 
Federally listed threatened or endangered species, or result in the 
``take'' of Federally listed or endangered species. As such, this 
amendment will not alter the conditions that lead to the implementation 
of the 1996 Biological Opinion.
    As noted in the findings above, Pennsylvania's coal refuse disposal 
site selection process is in addition to SMCRA's and the State 
program's permitting requirements, and, as such, provides an additional 
layer of environmental regulation of coal refuse disposal operations to 
that set forth in SMCRA and its implementing regulations. The site 
selection process is more stringent than SMCRA and the Federal 
regulations because it encourages coal refuse disposal on already 
disturbed sites, and also encourages construction of fewer, though 
larger, coal refuse disposal sites. Neither SMCRA nor the Federal 
regulations contains these environmentally sound incentives. While our 
approval of this amendment may render the site selection process less 
restrictive than before, that process remains more stringent than the 
environmental control and regulation of surface coal mining and 
reclamation operations contained in SMCRA.
    Comment Number 2 (Section 7 Consultation with USFWS). Under section 
7 of the Endangered Species Act, OSMRE must engage in consultation with 
USFWS about the proposed program amendment.
    PennFuture states that under section 7 of the Endangered Species 
Act, OSMRE must engage in formal consultation with the USFWS over any 
action that ``may affect'' the Indiana bat or any other Federally 
listed threatened or endangered species, unless, after informal 
consultation, OSMRE determines, and the USFWS concurs, that the 
proposed action is not likely to adversely affect any listed species or 
critical habitat. PennFuture states that in light of the consultation 
between the two agencies that occurred when the amendment to the CRDCA 
was submitted to OSMRE as a program amendment, and the fact that the 
proposed program amendment currently under review could significantly 
add to the number of preferred sites, OSMRE must initiate consultation 
with USFWS over the proposed amendment.

OSMRE's Response

    Our approval of this amendment is subject to the same restrictions 
contained in our April 22, 1998, approval of an amendment to the CRDCA. 
Namely, with respect to preferred sites, the State will not approve 
(via the site selection process) or permit (via requirements in 
chapters 86 or 90) a site that is known or likely to contain Federally 
listed threatened or endangered species unless the State demonstrates, 
and the USFWS concurs, that the proposed activity is not likely to 
adversely affect Federally listed threatened or endangered species or 
result in the ``take'' of Federally listed threatened or endangered 
species in violation of section 9 of the Endangered Species Act. See 63 
FR 19805. Further, the presence of Federally listed threatened or 
endangered species on a preferred site would still require Pennsylvania 
to conclude, and the USFWS to concur, prior to the commencement of 
surface mining activity, that the proposed activity is not likely to 
adversely affect Federally listed threatened or endangered species or 
result in the taking of such species. 25 Pa. Code 90.202(e)(7). As 
confirmed by PADEP in the submission, the 1996 Biological Opinion, and 
any species-specific protective measures required by the USFWS would 
apply to all permits issued under this new category of preferred sites, 
thereby providing the required protection of Federally listed 
endangered and threatened species. For all of these reasons, we have 
determined that additional section 7 consultation for this amendment is 
not warranted.

Federal Agency Comments

    Under Federal regulations at 30 CFR 732.17(h)(11)(i) and section 
503(b) of SMCRA, we requested comments on the amendment from various 
Federal agencies with an actual or potential interest in the 
Pennsylvania program (Administrative Record No. PA 837.111). The Mine 
Safety and Health Administration (MSHA), District 1, in a letter dated 
March 31, 2010, (Administrative Record No. PA 837.116), responded that 
it does not have any comments or concerns with this request.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under Federal regulations at 30 CFR 732.17(h)(11)(ii), we are 
required to get a written concurrence from EPA for those provisions of 
the program amendment that relate to air or water quality standards 
issued under the authority of the Clean Water Act (33 U.S.C. 1251 et 
seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). The revision that 
Pennsylvania proposes to make in this amendment does not pertain to air 
or water quality standards. Therefore, we did not ask EPA to concur on 
the amendment.

[[Page 63129]]

V. OSMRE's Decision

    Based on the above findings, we approve the amendment Pennsylvania 
sent to us on February 24, 2010, pertaining to Pennsylvania's CRDCA. 
However, our approval is with the understanding that, with respect to 
preferred sites, the State will not approve a site (via the site 
selection process) or permit (via requirements in chapters 86 or 90) a 
site that is known or likely to contain Federally listed threatened or 
endangered species, unless the State concludes, and the USFWS concurs, 
that the proposed activity is not likely to adversely affect Federally 
listed threatened or endangered species or result in the ``take'' of 
Federally listed or endangered species in violation of section 9 of the 
Endangered Species Act.

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 
regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866 (Regulatory Planning and Review).

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 because each program is drafted and promulgated by a 
specific State, not by OSMRE. 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. 
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

    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) et seq.).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal, which is the subject of this rule, is based upon 
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 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 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 State submittal, which is the subject of this rule, is based 
upon Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon Federal 
regulations for which an analysis was prepared and a determination made 
that the Federal regulation did not impose an unfunded mandate.

[[Page 63130]]

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 29, 2015.
Thomas D. Shope,
Regional Director, Appalachian Region.

    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 938.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec.  938.15  Approval of Pennsylvania regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                                   Date of final
       Original amendment submission date           publication                Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
February 24, 2010...............................     October 19,  52 P.S. 30.54a(a)(6)
                                                            2015
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2015-26477 Filed 10-16-15; 8:45 am]
 BILLING CODE 4310-05-P