[Federal Register Volume 89, Number 160 (Monday, August 19, 2024)]
[Rules and Regulations]
[Pages 66989-66991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18512]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[SATS No. PA-175-FOR; Docket ID: OSM-2022-0003; S1D1S SS08011000 
SX064A000 245S180110; S2D2S SS08011000 SX064A000 24XS501520]


Pennsylvania Regulatory Program

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

ACTION: Final rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are removing our disapproval of two provisions of the 
Pennsylvania regulatory program (the Pennsylvania program) that we have 
previously addressed, but which remained codified in the Code of 
Federal Regulations (CFR). The disapprovals are no longer necessary 
because Pennsylvania subsequently submitted and obtained OSMRE approval 
of revised regulations.

DATES: Effective August 19, 2024.

FOR FURTHER INFORMATION CONTACT: Ben Owens, Acting Field Office 
Director, Pittsburgh Field Office, Office of Surface Mining Reclamation 
and Enforcement, 3 Parkway Center, Pittsburgh, PA 15220, Telephone: 
(412) 937-2827, Email: [email protected].

SUPPLEMENTARY INFORMATION:
I. Discussion of Final Rule
II. Statutory and Executive Order Reviews

I. Discussion of Final Rule

    By letter dated March 7, 2022 (SATS No. PA-175-FOR; Administrative 
Record No. OSM-2022-0003), Pennsylvania requested that we remove our 
previous disapprovals at 30 CFR 938.12(e)(1) and (2), which disapproved 
proposed 2006 revisions to Pennsylvania's regulations at Title 25 of 
the Pennsylvania Code (Pa. Code) 86.17(e) and 86.283(c). Pennsylvania 
believes that removal of the disapprovals will clarify that the 
deficiencies noted in the CFR were resolved and that no further action 
by Pennsylvania is required.
    On May 23, 2006, Pennsylvania sent us an amendment to revise its 
program regulations at Title 25 of the Pa. Code (SATS No. PA-147-FOR; 
Administrative Record No. PA 793.11) in response to five required 
program amendments. See 72 FR 19117 (Apr. 17, 2007). The proposed 
amendment also included four additional changes, which were made at 
Pennsylvania's own initiative. Two of the four additional changes that 
Pennsylvania proposed concerned money received from reclamation fees 
intended to supplement funding for the reclamation bond pool that 
supported its Alternative Bonding System (ABS). Pennsylvania contended 
that there was no longer a basis for maintaining the reclamation fee 
because the State had discontinued its ABS and revised its bonding 
regulations to require that all mine permits post a full-cost 
reclamation bond. Pennsylvania submitted a request to discontinue the 
collection of the $100 per acre reclamation fee authorized under 25 Pa. 
Code 86.17(e) by proposing the following sentence: ``This fee shall not 
be required after (effective date of this rulemaking).''
    Pennsylvania also proposed to amend Title 25 of the Pennsylvania 
Code by removing section 86.283(c) because it referenced the 
reclamation fee in relation to mine operators approved to participate 
in the remining financial guarantees program. Pennsylvania submitted 
the amendment to create consistency with the proposed amendment to 
section 86.17(e) that would delete the reclamation fee.
    While we approved the other requested changes related to PA-147-
FOR, we deferred our decision on the

[[Page 66990]]

two changes pertaining to the discontinuation of a $100 per acre 
reclamation fee. We deferred our decision because aspects of 
Pennsylvania's decision to eliminate its ABS in favor of a 
conventional, or ``full-cost,'' bonding system had been challenged, and 
the matter was pending before the United States Court of Appeals for 
the Third Circuit in Pennsylvania Federation of Sportsmen's Clubs v. 
Kempthorne, 497 F.3d 337 (3d Cir. 2007). The Third Circuit in 
Kempthorne set aside our decision to rescind a requirement that we 
imposed on Pennsylvania in 1991, which had required Pennsylvania to 
submit information sufficient to demonstrate that the revenues 
generated by the collection of the reclamation fee under 25 Pa. Code 
86.17(e) would assure that the State's bond pool fund satisfied our 
bonding requirements at 30 CFR 800.11(e). Following the Kempthorne 
decision, we disapproved Pennsylvania's proposed deletion of the 
reclamation fee under 25 Pa. Code 86.17(e) and related reference in 25 
Pa. Code 86.283(c), see 73 FR 38918 (July 8, 2008), and reinserted the 
1991 required amendment at 30 CFR 938.16(h), see 74 FR 12265 (Mar. 24, 
2009).
    Likewise, Pennsylvania revised its program to comply with the Third 
Circuit's judgment in Kempthorne. On August 1, 2008, Pennsylvania 
submitted a number of revisions that, among other things, retained the 
reclamation fee under 25 Pa. Code 86.17(e), making it adjustable on an 
annual basis in lieu of a fixed $100 per acre fee, and retained the 
related reference in 25 Pa. Code 86.283(c). On August 10, 2010, we 
approved Pennsylvania's revision to 25 Pa. Code 86.17(e) and retention 
of 25 Pa. Code 86.283(c). See 75 FR 48526 (Aug. 10, 2010). The 2010 
approval resolved our initial disapproval of Pennsylvania's proposed 
elimination of the reclamation fee. It also meant that the disapprovals 
at 30 CFR 938.12(e)(1) and (2) became moot. At Pennsylvania's request, 
we are removing 30 CFR 938.12(e)(1) and (2) in this final rule.
    This final rule, which removes our disapproval of Pennsylvania's 
2006 proposed amendment, does not entail any new substantive decisions 
on this or any other part of the Pennsylvania program, nor does it 
alter the terms of any of our prior decisions. Pennsylvania's letter of 
March 7, 2022, confirms that the state has implemented and will 
continue to implement 25 Pa. Code 86.17(e) and 25 Pa. Code 86.283(c) of 
its regulations in a manner consistent with our 2010 approval of the 
2008 amendment.

II. Statutory and Executive Order Reviews

Administrative Procedure Act

    We are publishing this final rule without prior public notice or 
opportunity for public comment. The Administrative Procedure Act, 5 
U.S.C. 533, provides an exception to notice and comment requirements 
when an agency finds that there is good cause for dispensing with 
notice and comment procedures on the basis that they are impracticable, 
unnecessary, or contrary to the public interest. We have determined 
that under 5 U.S.C. 553(b)(3)(B), good cause exists for dispensing with 
the notice of proposed rulemaking and public comment procedures for 
this rule.
    Specifically, we have determined that notice and comment is 
unnecessary for this rule because it is non-substantiative. As 
discussed above, this rule removes provisions concerning now-moot state 
program disapprovals for Pennsylvania that remained codified at 30 CFR 
938.12(e). This rule neither imposes new regulatory requirements nor 
removes any existing regulatory requirements.
    For the same reasons, we find that good cause exists under 5 U.S.C. 
533(d)(3) to have the regulation become effective on a date that is 
less than 30 days after the date of publication in the Federal 
Register.

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This rule would not effect a taking of private property or 
otherwise have taking implications that would result in private 
property being taken for government use without just compensation under 
the law. Therefore, a takings implication assessment is not required. 
This determination is based on the nature of this rule, in which we do 
not make any substantive decision.

Executive Orders 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review, and 14094--Modernizing 
Regulatory Review

    Executive Order 12866, as amended by Executive Order 14094, 
provides that the Office of Information and Regulatory Affairs in the 
Office of Management and Budget (OMB) will review all significant 
rules. Pursuant to OMB guidance (OMB Memo M-94-3), dated October 12, 
1993, the approval of State program amendments is exempted from OMB 
review under Executive Order 12866, as amended by Executive Order 
14094. Executive Order 13563, which reaffirms and supplements Executive 
Order 12866, retains this exemption.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by section 3 of Executive Order 12988. The Department determined that 
this Federal Register document meets the criteria of section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency write its legislation and 
regulations to minimize litigation; and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because section 3 focuses on the quality of Federal 
legislation and regulations, the Department limited its review under 
this Executive Order to the quality of this Federal Register document 
and to changes to the Federal regulations.

Executive Order 13132--Federalism

    This rule has no potential Federalism implications as defined under 
section 1(a) of Executive Order 13132. Executive Order 13132 directs 
agencies to ``grant the States the maximum administrative discretion 
possible'' with respect to Federal statutes and regulations 
administered by the States. Pennsylvania, through its approved 
regulatory program, implements and administers SMCRA and its 
implementing regulations at the State level. This rule only corrects 
the CFR to reflect our prior disapprovals of the Pennsylvania program 
submitted and drafted by the State, and thus, has no effect on the 
maximum administrative discretion we are directed to give to States.

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

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175 and have determined that it has no substantial 
direct effects on the distribution of power and responsibilities 
between the Federal Government and Tribes. The basis for this 
determination is that our

[[Page 66991]]

decision on the Pennsylvania program does not include Indian lands as 
defined by SMCRA or other Tribal lands and it does not affect the 
regulation of activities on Indian lands or other Tribal lands. Indian 
lands under SMCRA are regulated independently under the applicable 
Federal Indian program. The Department's consultation policy also 
acknowledges that our rules may have Tribal implications where the 
state proposing the amendment encompasses ancestral lands in areas with 
minable coal. We are currently working to identify and engage 
appropriate Tribal stakeholders to devise a constructive approach for 
consulting on these amendments.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking 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 
significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

National Environmental Policy Act

    Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 
1251(a) and 1292(d), respectively) and the U.S. Department of the 
Interior Departmental Manual, part 516, section 13.5(A), State program 
amendments are not 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 include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.) is not required.

Regulatory Flexibility Act

    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, requests that we correct the CFR to accurately reflect 
our prior approval of parts of the Pennsylvania program, and therefore, 
would not have a significant economic effect upon a substantial number 
of small entities.

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 on the nature of this rule, in 
which we do not make any substantive decision.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. This determination 
is based on the nature of this rule, in which we do not make any 
substantive decision. Therefore, a statement containing the information 
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is 
not required.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

Thomas D. Shope,
Regional Director, North Atlantic--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.


Sec.  938.12  Amended]

0
2. In Sec.  938.12, remove paragraph (e) and redesignate paragraph (f) 
as paragraph (e).

[FR Doc. 2024-18512 Filed 8-16-24; 8:45 am]
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