Pennsylvania Regulatory Program, 19117-19122 [E7-7227]

Download as PDF Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations List of Subjects in 18 CFR Part 381 Thomas R. Herlihy, Executive Director. In consideration of the foregoing, the Commission amends part 381, Chapter I, Title 18, Code of Federal Regulations, as set forth below. I PART 381—FEES 1. The authority citation for part 381 continues to read as follows: I Authority: 15 U.S.C. 717–717w; 16 U.S.C. 791–828c, 2601–2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352; 49 U.S.C. 60502; 49 App. U.S.C. 1–85. § 381.302 [Amended] 2. In 381.302, paragraph (a) is amended by removing ‘‘$19,890’’ and adding ‘‘$20,940’’ in its place. I § 381.303 [Amended] 3. In 381.303, paragraph (a) is amended by removing ‘‘$29,040’’ and adding ‘‘$30,560’’ in its place. I § 381.304 [Amended] 4. In 381.304, paragraph (a) is amended by removing ‘‘$15,230’’ and adding ‘‘$16,020’’ in its place. I § 381.305 [Amended] 5. In 381.305, paragraph (a) is amended by removing ‘‘$5,700’’ and adding ‘‘$6,000’’ in its place. I § 381.403 [Amended] 6. Section 381.403 is amended by removing ‘‘$9,900’’ and adding ‘‘$10,420’’ in its place. I § 381.505 [Amended] 7. In 381.505, paragraph (a) is amended by removing ‘‘$17,110’’ and adding ‘‘$18,000’’ in its place and by removing ‘‘$19,360’’ and adding ‘‘$20,380’’ in its place. I Subpart H of Part 381 [Removed] 8. Subpart H of part 381 (consisting of § 381.801) is removed. cprice-sewell on PRODPC61 with RULES I [FR Doc. E7–7190 Filed 4–16–07; 8:45 am] BILLING CODE 6717–01–P VerDate Aug<31>2005 14:53 Apr 16, 2007 Jkt 211001 rules and regulations consistent with regulations issued by the Secretary Office of Surface Mining Reclamation pursuant to the Act.’’ See 30 U.S.C. and Enforcement 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior 30 CFR Part 938 conditionally approved the Pennsylvania program on July 30, 1982. [PA–147–FOR] You can find background information on the Pennsylvania program, including Pennsylvania Regulatory Program the Secretary’s findings, the disposition AGENCY: Office of Surface Mining of comments, and conditions of Reclamation and Enforcement (OSM), approval in the July 30, 1982, Federal Interior. Register (47 FR 33050). You can also ACTION: Final rule; approval of find later actions concerning amendment. Pennsylvania’s program and program amendments at 30 CFR 938.11, 938.12, SUMMARY: We are removing five required 938.13, 938.15 and 938.16. amendments to the Pennsylvania II. Submission of the Amendment regulatory program (the ‘‘Pennsylvania program’’) regulations under the Surface By letter dated May 23, 2006 the Mining Control and Reclamation Act of Pennsylvania Department of 1977 (SMCRA or the Act) related to Environmental Protection (PADEP) sent alternative reclamation plans; us an amendment to revise its program alternative postmining land use regulations at 25 Pennsylvania Code determinations; and bond forfeiture (Administrative Record No. PA 793.11) sites where reclamation is unreasonable, under SMCRA (30 U.S.C. 1201 et seq.). unnecessary, or impossible. Pennsylvania sent the amendment in Pennsylvania revised its program to be response to five required program consistent with the corresponding amendments codified in the Federal Federal regulations and SMCRA. regulations at 30 CFR 938.16 (mm), (nn), We are also approving two of four (oo), (pp), and (qq), and to include four additional requested changes (not additional changes made at its own required) to the Pennsylvania program. initiative. The required amendments Pennsylvania revised its program at its pertain to alternative reclamation plans, own initiative to clarify ambiguities and alternative post mining land use initiate changes in its fee collection determinations, and bond forfeiture calculations. The two approved changes sites where reclamation is unreasonable, are in regard to a typographical unnecessary, or impossible and were reference error and the evaluation of required in a final rule notice published bond forfeiture sites. We are deferring in the Federal Register on October 24, our decision on two changes in regard 1991 (56 FR 55080). The revisions that to the discontinuation of a $100 per acre Pennsylvania proposed at its own reclamation fee. initiative concern money received from EFFECTIVE DATE: April 17, 2007. reclamation fees and the evaluation of bond forfeiture sites. FOR FURTHER INFORMATION CONTACT: We announced receipt of the George Rieger, Chief, Pittsburgh Field Division, Telephone: (717) 782–4036, e- proposed amendment in the August 28, 2006, Federal Register (71 FR 50868). In mail: grieger@osmre.gov. the same document, we opened the SUPPLEMENTARY INFORMATION: public comment period and provided an I. Background on the Pennsylvania Program opportunity for a public hearing or II. Submission of the Amendment meeting on the amendment’s adequacy III. OSM’s Findings (Administrative Record No. PA 793.17). IV. Summary and Disposition of Comments The public comment period ended on V. OSM’s Decision VI. Procedural Determinations September 27, 2006. We did not hold a public hearing or meeting because no I. Background on the Pennsylvania one requested one. We received written Program comments from three Federal agencies Section 503(a) of the Act permits a and one environmental organization. State to assume primacy for the III. OSM’s Findings regulation of surface coal mining and Following are the findings we made reclamation operations on non-Federal and non-Indian lands within its borders concerning the amendment under SMCRA and the Federal regulations at by demonstrating that its State program 30 CFR 732.15 and 732.17. We are includes, among other things, ‘‘a State law which provides for the regulation of approving the amendment, except as noted below, which includes removing surface coal mining and reclamation five required amendments to the operations in accordance with the Pennsylvania regulatory program. We requirements of the Act * * *; and DEPARTMENT OF THE INTERIOR Electric power plants, Electric utilities, Natural gas, Reporting and recordkeeping requirements. 19117 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\17APR1.SGM 17APR1 19118 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations cprice-sewell on PRODPC61 with RULES are removing the required program amendments at 30 CFR 938.16 (mm), (nn), (oo), (pp), and (qq). Any revisions that we do not specifically discuss below concern nonsubstantive wording, editorial, or re-numbering of section changes and are approved here without discussion. 1. Required Amendment at 30 CFR 938.16 (mm). Alternative Reclamation Plans and Applicable Performance Standards This required program amendment concerns alternative reclamation plans and applicable performance standards. The required program amendment codified in the Federal regulations at 30 CFR 938.16(mm) requires Pennsylvania to amend 25 Pa. Code 86.187(b)(1) or otherwise amend its program by requiring that alternative reclamation plans comply with all applicable performance standards in accordance with 86.189(c)(2), (c)(3), or (c)(4), whichever is appropriate. The amendment was required because section 86.187(b)(1) can be misinterpreted. Currently paragraph (b)(1) provides that the PADEP may prepare and implement an alternative reclamation plan where it determines that the original plan may be amended to decrease the cost of reclaiming the bond forfeiture site. Without more clarification, this paragraph can be interpreted to allow the PADEP to approve an alternative reclamation plan that would not require reclamation in accordance with the applicable performance standards in accordance with 86.189(c)(2), (c)(3), and (c)(4), whichever is appropriate. Therefore, paragraph (1) of subsection 86.187(b) was not approved by OSM in an October 24, 1991, rulemaking to the extent that it would allow the implementation of an alternative reclamation plan that fails to require reclamation in accordance with the applicable performance standards mentioned above. See 56 FR 55083. In response to this required amendment, Pennsylvania has amended 25 Pa. Code 86.187(b) by clarifying that an alternative reclamation plan must be completed pursuant to 86.187(c). The PADEP is also amending 25 Pa. Code 86.187(c) with this amendment to include the requirement that alternative reclamation plans must comply with all applicable performance standards in accordance with 86.189(c)(2), (c)(3), and (c)(4). See Finding 2 below. We find that this clarification satisfies the required program amendment codified in the Federal regulations at 30 CFR 938.16(mm) and can be approved. Therefore, the required program VerDate Aug<31>2005 14:53 Apr 16, 2007 Jkt 211001 amendment at 30 CFR 938.16(mm) can be removed. 2. Required Amendments at 30 CFR 938.16 (nn). Bond Forfeiture Sites: Alternative Reclamation Plans and Alternative Postmining Land Use This required program amendment concerns bond forfeiture sites (alternative postmining land use determinations and alternative reclamation plans). The required program amendment codified in the Federal regulations at 30 CFR 938.16 (nn) requires Pennsylvania to submit a proposed amendment to 25 Pa. Code 86.187(c) and section 18(c) of the Pennsylvania Surface Mining Conservation and Reclamation Act (PA SMCRA) or otherwise amend its program to be no less effective than 30 CFR 816.133(a) and 817.133(a) by requiring that alternative postmining land use determinations for sites with forfeited bonds, under the Federal interim program or under Pennsylvania’s permanent program, be made to ensure that all disturbed areas are restored to conditions that are capable of supporting either the uses they were capable of supporting before any mining, or higher or better uses. The amendment was required because section 18(c) of PA SMCRA and 25 Pa. Code 86.187(c) currently allow an alternative reclamation plan that merely calls for reclaiming the land so that it is suitable for agriculture, forests, recreating wildlife or water conservation, without regard to whether the alternative postmining land use is equal to or higher than the premining landuse as required by 30 CFR 816.133(a) and 817.133(a). Therefore, section 18(c) of PA SMCRA and paragraph (c) of section 86.187 were not approved by OSM in an October 24, 1991, rulemaking to the extent that they did not provide for all disturbed areas to be restored to conditions that are capable of supporting either the uses they were capable of supporting before any mining, or higher or better uses. See 56 FR 55084. In response to this required amendment, Pennsylvania has amended 25 Pa. Code 86.187(c) by deleting language which allowed for alternate reclamation plans for bond forfeiture sites that would make the sites suitable, at a minimum, for agriculture, forests, recreation, wildlife or water conservation. The PADEP also added language to 86.187(c) that makes it clear that an alternate plan must comply with all applicable performance standards at 86.189(c)(2) through (c)(4), whichever is appropriate and ensure that all disturbed areas are restored to PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 conditions that are capable of supporting either the uses they were capable of supporting before any mining or higher or better uses. PADEP did not submit changes to section 18(c) of PA SMCRA. Nevertheless, we believe that section 18(c) can be interpreted in a manner that does not compromise the amended requirements of section 86.187(c), and therefore conclude that the statutory provision need not be amended. Should we later determine that the previously unapproved portion of section 18(c) is being interpreted to override the new requirements at § 86.187(c), such that the program is again less effective than the Federal regulations, we will take action to reinstate the disapproval of the offending portion of section 18(c). For the foregoing reasons, we find that the amendment to 25 Pa. Code 86.187(c) satisfies the requirements of 30 CFR 938.16(nn) and can be approved. Therefore, the required program amendment codified in the Federal regulations at 30 CFR 938.16(nn) can be removed. 3. Required Amendment at 30 CFR 938.16 (oo). Bond Forfeiture Sites: Alternative Postmining Land Use Determinations/Alternative Reclamation Plans This required program amendment concerns bond forfeiture sites (alternative postmining land use determinations and alternative reclamation plans). The required program amendment codified in the Federal regulations at 30 CFR 938.16(oo) requires Pennsylvania to delete 25 Pa. Code 86.189(c)(5) or otherwise amend its program to be no less effective than 30 CFR 816.133(a) and 817.133(a) by requiring that sites bonded during the Federal interim program or under Pennsylvania’s permanent program be restored to conditions that are capable of supporting the uses they were capable of supporting before any mining or higher or better uses. The amendment was required because 25 Pa. Code 86.189(c)(5) currently allows for an alternative reclamation plan to make the site suitable, at a minimum, for agriculture, forests, recreation, wildlife or water conservation. The Federal regulations at 30 CFR 816.133(a) and 817.133(a) require that all disturbed areas be restored to uses they were capable of supporting before any mining or to higher or better uses. The Pennsylvania provision lacks a requirement that a site be restored to a higher and better use. Therefore, paragraph (c)(5) of subsection 86.187 was not approved by OSM in an October 24, 1991, E:\FR\FM\17APR1.SGM 17APR1 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations rulemaking to the extent that it did not provide for all disturbed areas to be restored to conditions that are capable of supporting either the uses they were capable of supporting before any mining, or higher or better uses. See 56 FR 55085. For the same reason, the Director did not approve the cross references to 86.189(c)(5) contained in 86.189(c)(2), (c)(3), and (c)(4). In response to this required amendment, Pennsylvania has amended 25 Pa. Code 86.189 (c)(5) by deleting this paragraph which allowed for alternate reclamation plans for bond forfeiture sites that would make the sites suitable, at a minimum, for agriculture, forests, recreation, wildlife or water conservation. Federal regulations at 30 CFR 816.133(a) (relating to post mining land use) require that all disturbed areas be restored to uses they were capable of supporting before mining or to higher or better uses. The PADEP also deleted references to subsection (c)(5) at 86.189(c)(2), (c)(3), and (c)(4). We find that the amendment to 25 Pa. Code 86.187(c)(2)–(5) satisfies the requirements of 30 CFR 938.16(oo) and can be approved. Therefore, the required program amendment codified in the Federal regulations at 30 CFR 938.16 (oo) can be removed. cprice-sewell on PRODPC61 with RULES 4. Required Amendment at 30 CFR 938.16 (pp): Bond Forfeiture Sites Where Reclamation Is Unreasonable, Unnecessary, or Impossible This required program amendment concerns bond forfeiture sites where reclamation is considered to be unreasonable, unnecessary, or impossible. The required program amendment codified in the Federal regulations at 30 CFR 938.16 (pp) requires that Pennsylvania delete 25 Pa. Code 86.190(a)(3). The amendment is required because this section allows the landowner of a bond forfeiture site to prevent reclamation, rendering 25 Pa. Code 86.190 less effective than the Federal regulations at 30 CFR 800.50(b)(2). While Title V of SMCRA, 30 U.S.C. 1251–1279, contains no specific provisions authorizing the regulatory authority to compel a recalcitrant landowner to allow reclamation, the Federal regulations at 30 CFR 800.50(b)(2) are quite explicit in requiring the regulatory authority to use funds collected from the bond forfeiture to complete the reclamation plan for that site, recalcitrant landowners notwithstanding. Therefore, paragraph 86.190(a)(3) was not approved in an October 24, 1991, rulemaking. See 56 FR 55085–55086. VerDate Aug<31>2005 14:53 Apr 16, 2007 Jkt 211001 In response to this required amendment, Pennsylvania has deleted 25 Pa. Code 86.190(a)(3). We find that the deletion of 25 Pa. Code 86.190(a)(3) satisfies the requirements of 30 CFR 938.16(pp) and can be approved. Therefore, the required program amendment codified in the Federal regulations at 30 CFR 938.16 (pp) can be removed. 5. Required Amendment at 30 CFR 938.16 (qq): Bond Forfeiture Sites Where Reclamation Is Unreasonable, Unnecessary, or Impossible This required program amendment concerns bond forfeiture sites where reclamation is considered to be unreasonable, unnecessary, or impossible. The required program amendment codified in the Federal regulations at 30 CFR 938.16 (qq) requires that Pennsylvania delete the words ‘‘but are not limited to’’ from the introductory paragraph of 25 Pa. Code 86.190(a). The amendment was required because the introductory language of subsection (a) of section 86.190 currently includes the words ‘‘but are not limited to,’’ which are used to refer to the reasons justifying a determination that reclamation under the reclamation plan is unreasonable, unnecessary or physically impossible. Any such reasons which are not specifically contained in section 86.190 were not approved. Currently, 25 Pa. Code 86.190(a) specifies parameters for determining when completion of the approved reclamation plan is unreasonable, unnecessary, or physically impossible. The reasons justifying such a determination include, but are not limited to the following: (1) The site has been re-permitted and re-bonded for mining and reclamation is required as a condition of the permit; (2) the site has been otherwise reclaimed; (3) the landowner refused to allow the site to be reclaimed and the site is not a hazard to public health, safety, and welfare or adjacent property. Subsection 86.190(a) also provides that if the reclamation plan cannot be completed, the bond amount will be made available for expenditure to reclaim other lands or restore water supplies affected by other surface mining operations for which the Department has forfeited bonds. As we noted in an October 24, 1991, rulemaking notice, the introductory language of subsection (a) of section 86.190, concerning the use of funds for other sites where reclamation of the forfeited site is unreasonable, unnecessary or physically impossible, mirrors the language of subsection (b), PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 19119 section 18, of PA SMCRA. See 56 FR 55085. This provision of Pennsylvania law was approved by the Secretary, as part of Pennsylvania’s original permanent program approval. The reasons specified at section 86.190(a)(1), (a)(2), and (a)(3) for making a determination not to reclaim a site have not previously been approved by OSM. If as provided in paragraph (1) of subsection (a), the site has been repermitted and re-bonded for mining with full reclamation of the entire area made a permit condition, then forfeited bond money from the original permit is not needed for reclamation of the site. Likewise, as provided in paragraph (2), forfeited bond money is not needed to reclaim the site if it has been otherwise reclaimed, as long as such reclamation was performed in compliance with the reclamation plan and in accordance with the performance standards of the Pennsylvania program. Therefore, while there are no specific Federal counterparts to paragraphs (1) and (2) of subsection (a) of section 86.190, we previously found that these provisions were not inconsistent with SMCRA and the Federal regulations and they were approved to the extent that full reclamation of the site in accordance with the reclamation plan and all applicable performance standards are required. The PADEP also amended § 86.190(a)(3) by deleting this section. See Finding 4. Because the basis for the Secretary’s approval of 18(b) of PASMCRA had not changed, the Director approved the introductory paragraph of subsection 86.190 (a) in an October 24, 1991, rulemaking, except for the words ‘‘but are not limited to.’’ Id. In response to this required amendment, Pennsylvania has amended 25 Pa. Code 86.190(a) to delete the words ‘‘but are not limited to’’ to make clear that any reasons other than those specifically provided in 25 Pa. Code 86.190(a) are not permissible. We find that the amendment to 25 Pa. Code 86.190(a) satisfies the requirements of 30 CFR 938.16(qq) and can be approved. Therefore, the required program amendment codified in the Federal regulations at 30 CFR 938.16 (qq) can be removed. 6. Additional Change: 25 Pa Code 86.17(e)—Reclamation Fees Pennsylvania has amended this subsection to discontinue the collection of the $100 per acre reclamation fee from permittees under 25 Pa. Code 86.17(e). The reclamation fee is deposited in the Surface Mining Conservation and Reclamation Fund (Fund) as a supplement to forfeited bonds and is used for reclaiming mining E:\FR\FM\17APR1.SGM 17APR1 19120 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations operations which have defaulted on their obligation to reclaim mined sites. Because issues regarding the Fund’s solvency had become apparent, PADEP revised its bonding requirements and is now requiring all mine permits to post a full cost reclamation bond. The PADEP believes that because all of its permittees are now subject to full cost bonding requirements, there is no longer a basis for maintaining the supplement (the per acre fee). The issue of whether OSM acted within its discretion when it concluded that the Fund is no longer subject to the requirements of 30 CFR 800.11(e) is pending before the United States Court of Appeals for the Third Circuit in the matter of Pennsylvania Federation of Sportsmen’s Clubs v. Norton, (PFSC v. Norton) No. 06–1780. The outcome of this case could affect whether OSM may approve the proposed change to 25 Pa. Code 86.17(e). Therefore, in the interest of judicial economy, we are deferring our decision on this proposed change until final disposition of the PFSC v. Norton matter. cprice-sewell on PRODPC61 with RULES 7. Additional Change: 25 Pa Code 86.187(a)(1)—Money Received From the Fees Pennsylvania has amended 25 Pa. Code 86.187(a)(1) to correct a typographical error. In paragraph (a)(1), reference was improperly made to 25 Pa. Code 86.17(b) (relating to permit and reclamation fees). The correct reference is to 25 Pa. Code 86.17(e). We find that the amended citation at 25 Pa. Code 86.187(a)(1) corrects a citation error and does not render the Pennsylvania program inconsistent with SMCRA or the Federal Regulations and can be approved. 8. Additional Change: 25 Pa Code 86.188(b)(5) and (c)(3)—Evaluation of Bond Forfeiture Sites Pennsylvania has amended 25 Pa. Code 86.188 by deleting 25 Pa. Code 86.188(b)(5) and 86.188(c)(3) in order to make it clear that bond forfeiture funds posted for and still needed to complete reclamation of the specific site for which the bonds were forfeited will not be used for reclamation of other sites until reclamation of the forfeited site has been completed. Currently, 25 Pa. Code 86.188(b) lists the categories in decreasing priority order to be used when the Department is considering bond forfeiture site reclamation. Subsection (b)(5) refers to ‘‘other sites which need reclamation.’’ Furthermore, section (c) lists the factors that the Department will consider in selecting sites for reclamation under 25 Pa. Code 86.189(b)(1). Subsection (c)(3) VerDate Aug<31>2005 14:53 Apr 16, 2007 Jkt 211001 considers the availability of funds to accomplish the required reclamation of the site or that portion of the site which is threatening life, health, safety, other property or the environment. As noted in an October 24, 1991, rulemaking notice, subsections (b) and (c) were not approved by OSM to the extent that they would allow bond forfeiture funds posted for and needed to complete reclamation of a specific site to be used for reclamation of other sites. See 56 FR at 55084. To the extent that these subsections provided only for a ranking of sites for reclamation without compromising the requirement that all sites for which bonds were posted be properly reclaimed, it was determined they were not inconsistent with section 509(a) of SMCRA and 30 CFR 800.50(b)(2) of the Federal regulations. The PADEP is addressing the concerns expressed in the October 24, 1991, rulemaking and is deleting the subsections (b)(5) and (c)(3) to remove any doubt that the PADEP intends to maintain adequate bonding to have funds available for completion of reclamation should the bonds be forfeited. We find that the amended regulations at 25 Pa. Code 86.188(b) and (c) are not inconsistent with SMCRA or the Federal regulations and can be approved. 9. Additional Change: 25 Pa Code 86.283(c)—Reclamation Fees for Remining Areas Pennsylvania has amended 25 Pa. Code 86.283(c) to remove a reference to the per acre reclamation fee for remining areas for mine operators approved to participate in the financial guarantees program. PADEP has submitted this amendment to create consistency with the proposed amendment to 86.17(e) that would delete the per-acre reclamation fee requirement. See Finding 6 above. We are deferring our decision on the proposed amendment at 25 Pa. Code 86.283(c) for the same reason set forth above at Finding 6 in support of our deferral with respect to the proposed change at 86.17(e). IV. Summary and Disposition of Comments Public Comments We asked for public comments on the amendment (Administrative Record No. PA–793.17). We received comments from one organization, the Citizens for Pennsylvania’s Future (PennFUTURE) (Administrative Record No. PA 793.18). PennFUTURE objected to the portion of the program amendment that would PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 discontinue the collection of Pennsylvania’s reclamation fee at 25 Pa. Code 86.17(e), and requested that we defer our decision on this proposed change until such time as the matter of PFSC v. Norton is decided by the United States Court of Appeals for the Third Circuit. As we noted above in Finding 6 above, we are deferring our decision with respect to the proposed amendment to 86.17(e), as well as on an ancillary proposed change at 86.283(c) (See Finding 9 above). Because we are deferring our decision, we will not respond to PennFUTURE’s comments in opposition to these amendments in this rulemaking. Instead, we will respond to the comments in a future rulemaking, wherein we will decide whether or not to approve the proposed changes to 86.17(e) and 86.283(c). 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 793.12). The Mine Safety and Health Administration (MSHA), District 1, responded (Administrative Record No. PA 793.13) and stated that it did not have any comments or concerns regarding this request. The Natural Resources Conservation Service responded (Administrative Record No. PA 793.14) and stated that it did not have any comments regarding this request. Environmental Protection Agency (EPA) Concurrence and Comments Under Federal regulations at 30 CFR 732.17(h)(11)(i) and (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.). None of the revisions that Pennsylvania proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. On June 6, 2006, we requested comments on the amendment from EPA (Administrative Record No. PA 793.15). The EPA, Region III, responded and stated that it did not identify any inconsistencies with the Clean Water Act or any other statutes or regulations under its jurisdiction. E:\FR\FM\17APR1.SGM 17APR1 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations V. OSM’s Decision Based on the above findings, we approve, with certain exceptions, the amendment Pennsylvania sent to us on May 23, 2006. We are removing the required program amendments codified in the Federal regulations at 30 CFR 938.16(mm), (nn), (oo), (pp), and (qq) and approving two additional changes to the Pennsylvania program. We defer decision on two provisions regarding the reclamation fees at 25 Pa. Code 86.17(e) and 86.283(c). See Findings 6 and 9, respectively. To implement this decision, we are amending the Federal regulations at 30 CFR 938, which codify decisions concerning the Pennsylvania program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State’s program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards. 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. cprice-sewell on PRODPC61 with RULES 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, 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 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 VerDate Aug<31>2005 14:53 Apr 16, 2007 Jkt 211001 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 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 Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on proposed State regulatory program provisions does not constitute major Federal actions within the meaning of Section 102(2)(C) of the National PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 19121 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 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 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 government 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. E:\FR\FM\17APR1.SGM 17APR1 19122 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations List of Subjects in 30 CFR Part 938 Intergovernmental relations, Surface mining, Underground mining. Dated: February 23, 2007. H. Vann Weaver, Acting Regional Director, Appalachian Region. § 938.16 3. Section 938.16 is amended by removing and reserving paragraphs (mm), (nn), (oo), (pp), (qq). [FR Doc. E7–7227 Filed 4–16–07; 8:45 am] BILLING CODE 4310–05–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 070119012–7077–02; I.D. 031307B] RIN 0648–AU78 Pacific Albacore Tuna Fisheries; Vessel List to Establish Eligibility to Fish for Albacore Tuna in Canadian Waters Under the U.S. Canada Albacore Tuna Treaty National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: cprice-sewell on PRODPC61 with RULES * * * * 2. Section 938.15 is amended by adding a new entry in the table in chronological order by ‘‘Date of final publication’’ to read as follows: Citation/description * * * * * April 17, 2007 ................................ 25 Pa. Code: 86.187(a)(1), (b), (c); 86.188(b)(5) [deleted]; 86.188(c)(3) [deleted]; 86.189(c)(2) through (c)(4) [deleted reference to (c)(5)], 86.189 (c)(5) [deleted]; 86.190 (a) [the words ‘‘but are not limited to’’ are deleted]; 86.190(a)(3) [deleted]. I SUMMARY: NMFS issues this final rule to develop a new vessel list at the beginning of each calendar year of U.S. vessels eligible to fish for albacore tuna in Canadian waters. The vessel list would revert to zero vessels on December 31 of each year, unless NMFS receives a notice for a vessel to be added to the list for the upcoming year, with the requisite information. This regulation would clarify that the vessel list will remain valid for a single calendar year. Updating the list every year will facilitate the United States’ obligation to annually provide Canada a 15:21 Apr 16, 2007 * Date of final publication [Amended] VerDate Aug<31>2005 1. The authority citation for part 938 continues to read as follows: I I For the reasons set out in the preamble, 30 CFR part 938 is amended as set forth below: * * May 23, 2006 ................................. § 938.15 Approval of Pennsylvania regulatory program amendments. Authority: 30 U.S.C. 1201 et seq. I Original amendment submission date PART 938—PENNSYLVANIA Jkt 211001 current list of U. S. vessels that are likely to fish albacore off the coast of Canada. The proposed rule is adopted without change. DATES: This final rule will be effective May 17, 2007. ADDRESSES: You may submit requests to be placed on the annual list of U.S. vessels eligible to fish for albacore tuna in Canadian waters, by any of the following methods: • E-mail: albacore.fish@noaa.gov. • Mail: Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802–4213. • Phone: (562)980–4024. • Fax: (562) 980–4047. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to NMFS Southwest Region and by e-mail to DavidlRostker@omb.eop.gov, or fax to (202) 395–7285. FOR FURTHER INFORMATION CONTACT: Chris Fanning, Southwest Region, NMFS, (562) 980–4198 or (562) 980– 4030. SUPPLEMENTARY INFORMATION: On February 7, 2007, NMFS published a proposed rule (72 FR 5652) proposing to revise the methodology to create a vessel list for vessels eligible to fish for albacore tuna in Canadian waters. The proposed rule is adopted without change. The 1981 Treaty Between the Government of the United States of America and the Government of Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges (Treaty), as amended in 2002, establishes a number of obligations for both countries to control reciprocal fishing in waters of one country by vessels of the other country. PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 One obligation requires each country to annually provide to the other country a list of its fishing vessels that are expected to fish for Pacific albacore tuna off the coast of the other country during the upcoming fishing season, generally June through October each year. As described in the 2004 final rule implementing amendments to the Treaty (69 FR 31531, June 4, 2004), and codified at 50 CFR 300.172, the list must include vessel and owner name, address, and phone number; USCG documentation number (or state registration if not documented); vessel operator (if different from the owner) and his or her address with phone number. Each U.S. vessel must be on the list for at least 7 days prior to engaging in fishing under the Treaty. This is intended to ensure that both countries have equal information as to eligible vessels. Canadian and U.S. enforcement officers need up-to-date lists of eligible vessels to adequately enforce the Treaty. Vessel owners who wish their vessels to remain on, or be added to the vessel list must contact NMFS (see ADDRESSES) and provide the required information. NMFS will notify fishermen via a confirmation letter or email of the date the request to be on the list was received and the date the vessel was placed on the list. Before the 2006 fishing season (June through October), NMFS did not require owners of albacore fishing vessels that wanted their vessels to be on the list of U. S. vessels eligible to fish for albacore tuna in Canadian waters under the Treaty, to contact NMFS. Instead, NMFS relied on a lengthy list created from information provided by the industry that was not readily verifiable and did not indicate whether each vessel owner E:\FR\FM\17APR1.SGM 17APR1

Agencies

[Federal Register Volume 72, Number 73 (Tuesday, April 17, 2007)]
[Rules and Regulations]
[Pages 19117-19122]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-7227]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-147-FOR]


Pennsylvania Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are removing five required amendments to the Pennsylvania 
regulatory program (the ``Pennsylvania program'') regulations under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act) 
related to alternative reclamation plans; alternative postmining land 
use determinations; and bond forfeiture sites where reclamation is 
unreasonable, unnecessary, or impossible. Pennsylvania revised its 
program to be consistent with the corresponding Federal regulations and 
SMCRA.
    We are also approving two of four additional requested changes (not 
required) to the Pennsylvania program. Pennsylvania revised its program 
at its own initiative to clarify ambiguities and initiate changes in 
its fee collection calculations. The two approved changes are in regard 
to a typographical reference error and the evaluation of bond 
forfeiture sites. We are deferring our decision on two changes in 
regard to the discontinuation of a $100 per acre reclamation fee.

EFFECTIVE DATE: April 17, 2007.

FOR FURTHER INFORMATION CONTACT: George Rieger, Chief, Pittsburgh Field 
Division, Telephone: (717) 782-4036, e-mail: grieger@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Pennsylvania Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM'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.'' 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. Submission of the Amendment

    By letter dated May 23, 2006 the Pennsylvania Department of 
Environmental Protection (PADEP) sent us an amendment to revise its 
program regulations at 25 Pennsylvania Code (Administrative Record No. 
PA 793.11) under SMCRA (30 U.S.C. 1201 et seq.).
    Pennsylvania sent the amendment in response to five required 
program amendments codified in the Federal regulations at 30 CFR 938.16 
(mm), (nn), (oo), (pp), and (qq), and to include four additional 
changes made at its own initiative. The required amendments pertain to 
alternative reclamation plans, alternative post mining land use 
determinations, and bond forfeiture sites where reclamation is 
unreasonable, unnecessary, or impossible and were required in a final 
rule notice published in the Federal Register on October 24, 1991 (56 
FR 55080). The revisions that Pennsylvania proposed at its own 
initiative concern money received from reclamation fees and the 
evaluation of bond forfeiture sites.
    We announced receipt of the proposed amendment in the August 28, 
2006, Federal Register (71 FR 50868). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy (Administrative Record 
No. PA 793.17). The public comment period ended on September 27, 2006. 
We did not hold a public hearing or meeting because no one requested 
one. We received written comments from three Federal agencies and one 
environmental organization.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment, except as noted below, which includes removing 
five required amendments to the Pennsylvania regulatory program. We

[[Page 19118]]

are removing the required program amendments at 30 CFR 938.16 (mm), 
(nn), (oo), (pp), and (qq). Any revisions that we do not specifically 
discuss below concern nonsubstantive wording, editorial, or re-
numbering of section changes and are approved here without discussion.

1. Required Amendment at 30 CFR 938.16 (mm). Alternative Reclamation 
Plans and Applicable Performance Standards

    This required program amendment concerns alternative reclamation 
plans and applicable performance standards. The required program 
amendment codified in the Federal regulations at 30 CFR 938.16(mm) 
requires Pennsylvania to amend 25 Pa. Code 86.187(b)(1) or otherwise 
amend its program by requiring that alternative reclamation plans 
comply with all applicable performance standards in accordance with 
86.189(c)(2), (c)(3), or (c)(4), whichever is appropriate.
    The amendment was required because section 86.187(b)(1) can be 
misinterpreted. Currently paragraph (b)(1) provides that the PADEP may 
prepare and implement an alternative reclamation plan where it 
determines that the original plan may be amended to decrease the cost 
of reclaiming the bond forfeiture site. Without more clarification, 
this paragraph can be interpreted to allow the PADEP to approve an 
alternative reclamation plan that would not require reclamation in 
accordance with the applicable performance standards in accordance with 
86.189(c)(2), (c)(3), and (c)(4), whichever is appropriate.
    Therefore, paragraph (1) of subsection 86.187(b) was not approved 
by OSM in an October 24, 1991, rulemaking to the extent that it would 
allow the implementation of an alternative reclamation plan that fails 
to require reclamation in accordance with the applicable performance 
standards mentioned above. See 56 FR 55083.
    In response to this required amendment, Pennsylvania has amended 25 
Pa. Code 86.187(b) by clarifying that an alternative reclamation plan 
must be completed pursuant to 86.187(c). The PADEP is also amending 25 
Pa. Code 86.187(c) with this amendment to include the requirement that 
alternative reclamation plans must comply with all applicable 
performance standards in accordance with 86.189(c)(2), (c)(3), and 
(c)(4). See Finding 2 below.
    We find that this clarification satisfies the required program 
amendment codified in the Federal regulations at 30 CFR 938.16(mm) and 
can be approved. Therefore, the required program amendment at 30 CFR 
938.16(mm) can be removed.

2. Required Amendments at 30 CFR 938.16 (nn). Bond Forfeiture Sites: 
Alternative Reclamation Plans and Alternative Postmining Land Use

    This required program amendment concerns bond forfeiture sites 
(alternative postmining land use determinations and alternative 
reclamation plans). The required program amendment codified in the 
Federal regulations at 30 CFR 938.16 (nn) requires Pennsylvania to 
submit a proposed amendment to 25 Pa. Code 86.187(c) and section 18(c) 
of the Pennsylvania Surface Mining Conservation and Reclamation Act (PA 
SMCRA) or otherwise amend its program to be no less effective than 30 
CFR 816.133(a) and 817.133(a) by requiring that alternative postmining 
land use determinations for sites with forfeited bonds, under the 
Federal interim program or under Pennsylvania's permanent program, be 
made to ensure that all disturbed areas are restored to conditions that 
are capable of supporting either the uses they were capable of 
supporting before any mining, or higher or better uses.
    The amendment was required because section 18(c) of PA SMCRA and 25 
Pa. Code 86.187(c) currently allow an alternative reclamation plan that 
merely calls for reclaiming the land so that it is suitable for 
agriculture, forests, recreating wildlife or water conservation, 
without regard to whether the alternative postmining land use is equal 
to or higher than the premining landuse as required by 30 CFR 
816.133(a) and 817.133(a).
    Therefore, section 18(c) of PA SMCRA and paragraph (c) of section 
86.187 were not approved by OSM in an October 24, 1991, rulemaking to 
the extent that they did not provide for all disturbed areas to be 
restored to conditions that are capable of supporting either the uses 
they were capable of supporting before any mining, or higher or better 
uses. See 56 FR 55084.
    In response to this required amendment, Pennsylvania has amended 25 
Pa. Code 86.187(c) by deleting language which allowed for alternate 
reclamation plans for bond forfeiture sites that would make the sites 
suitable, at a minimum, for agriculture, forests, recreation, wildlife 
or water conservation. The PADEP also added language to 86.187(c) that 
makes it clear that an alternate plan must comply with all applicable 
performance standards at 86.189(c)(2) through (c)(4), whichever is 
appropriate and ensure that all disturbed areas are restored to 
conditions that are capable of supporting either the uses they were 
capable of supporting before any mining or higher or better uses.
    PADEP did not submit changes to section 18(c) of PA SMCRA. 
Nevertheless, we believe that section 18(c) can be interpreted in a 
manner that does not compromise the amended requirements of section 
86.187(c), and therefore conclude that the statutory provision need not 
be amended. Should we later determine that the previously unapproved 
portion of section 18(c) is being interpreted to override the new 
requirements at Sec.  86.187(c), such that the program is again less 
effective than the Federal regulations, we will take action to 
reinstate the disapproval of the offending portion of section 18(c).
    For the foregoing reasons, we find that the amendment to 25 Pa. 
Code 86.187(c) satisfies the requirements of 30 CFR 938.16(nn) and can 
be approved. Therefore, the required program amendment codified in the 
Federal regulations at 30 CFR 938.16(nn) can be removed.

3. Required Amendment at 30 CFR 938.16 (oo). Bond Forfeiture Sites: 
Alternative Postmining Land Use Determinations/Alternative Reclamation 
Plans

    This required program amendment concerns bond forfeiture sites 
(alternative postmining land use determinations and alternative 
reclamation plans). The required program amendment codified in the 
Federal regulations at 30 CFR 938.16(oo) requires Pennsylvania to 
delete 25 Pa. Code 86.189(c)(5) or otherwise amend its program to be no 
less effective than 30 CFR 816.133(a) and 817.133(a) by requiring that 
sites bonded during the Federal interim program or under Pennsylvania's 
permanent program be restored to conditions that are capable of 
supporting the uses they were capable of supporting before any mining 
or higher or better uses.
    The amendment was required because 25 Pa. Code 86.189(c)(5) 
currently allows for an alternative reclamation plan to make the site 
suitable, at a minimum, for agriculture, forests, recreation, wildlife 
or water conservation. The Federal regulations at 30 CFR 816.133(a) and 
817.133(a) require that all disturbed areas be restored to uses they 
were capable of supporting before any mining or to higher or better 
uses. The Pennsylvania provision lacks a requirement that a site be 
restored to a higher and better use.
    Therefore, paragraph (c)(5) of subsection 86.187 was not approved 
by OSM in an October 24, 1991,

[[Page 19119]]

rulemaking to the extent that it did not provide for all disturbed 
areas to be restored to conditions that are capable of supporting 
either the uses they were capable of supporting before any mining, or 
higher or better uses. See 56 FR 55085. For the same reason, the 
Director did not approve the cross references to 86.189(c)(5) contained 
in 86.189(c)(2), (c)(3), and (c)(4).
    In response to this required amendment, Pennsylvania has amended 25 
Pa. Code 86.189 (c)(5) by deleting this paragraph which allowed for 
alternate reclamation plans for bond forfeiture sites that would make 
the sites suitable, at a minimum, for agriculture, forests, recreation, 
wildlife or water conservation. Federal regulations at 30 CFR 
816.133(a) (relating to post mining land use) require that all 
disturbed areas be restored to uses they were capable of supporting 
before mining or to higher or better uses. The PADEP also deleted 
references to subsection (c)(5) at 86.189(c)(2), (c)(3), and (c)(4).
    We find that the amendment to 25 Pa. Code 86.187(c)(2)-(5) 
satisfies the requirements of 30 CFR 938.16(oo) and can be approved. 
Therefore, the required program amendment codified in the Federal 
regulations at 30 CFR 938.16 (oo) can be removed.

4. Required Amendment at 30 CFR 938.16 (pp): Bond Forfeiture Sites 
Where Reclamation Is Unreasonable, Unnecessary, or Impossible

    This required program amendment concerns bond forfeiture sites 
where reclamation is considered to be unreasonable, unnecessary, or 
impossible. The required program amendment codified in the Federal 
regulations at 30 CFR 938.16 (pp) requires that Pennsylvania delete 25 
Pa. Code 86.190(a)(3).
    The amendment is required because this section allows the landowner 
of a bond forfeiture site to prevent reclamation, rendering 25 Pa. Code 
86.190 less effective than the Federal regulations at 30 CFR 
800.50(b)(2). While Title V of SMCRA, 30 U.S.C. 1251-1279, contains no 
specific provisions authorizing the regulatory authority to compel a 
recalcitrant landowner to allow reclamation, the Federal regulations at 
30 CFR 800.50(b)(2) are quite explicit in requiring the regulatory 
authority to use funds collected from the bond forfeiture to complete 
the reclamation plan for that site, recalcitrant landowners 
notwithstanding. Therefore, paragraph 86.190(a)(3) was not approved in 
an October 24, 1991, rulemaking. See 56 FR 55085-55086.
    In response to this required amendment, Pennsylvania has deleted 25 
Pa. Code 86.190(a)(3). We find that the deletion of 25 Pa. Code 
86.190(a)(3) satisfies the requirements of 30 CFR 938.16(pp) and can be 
approved. Therefore, the required program amendment codified in the 
Federal regulations at 30 CFR 938.16 (pp) can be removed.

5. Required Amendment at 30 CFR 938.16 (qq): Bond Forfeiture Sites 
Where Reclamation Is Unreasonable, Unnecessary, or Impossible

    This required program amendment concerns bond forfeiture sites 
where reclamation is considered to be unreasonable, unnecessary, or 
impossible. The required program amendment codified in the Federal 
regulations at 30 CFR 938.16 (qq) requires that Pennsylvania delete the 
words ``but are not limited to'' from the introductory paragraph of 25 
Pa. Code 86.190(a).
    The amendment was required because the introductory language of 
subsection (a) of section 86.190 currently includes the words ``but are 
not limited to,'' which are used to refer to the reasons justifying a 
determination that reclamation under the reclamation plan is 
unreasonable, unnecessary or physically impossible. Any such reasons 
which are not specifically contained in section 86.190 were not 
approved.
    Currently, 25 Pa. Code 86.190(a) specifies parameters for 
determining when completion of the approved reclamation plan is 
unreasonable, unnecessary, or physically impossible. The reasons 
justifying such a determination include, but are not limited to the 
following: (1) The site has been re-permitted and re-bonded for mining 
and reclamation is required as a condition of the permit; (2) the site 
has been otherwise reclaimed; (3) the landowner refused to allow the 
site to be reclaimed and the site is not a hazard to public health, 
safety, and welfare or adjacent property. Subsection 86.190(a) also 
provides that if the reclamation plan cannot be completed, the bond 
amount will be made available for expenditure to reclaim other lands or 
restore water supplies affected by other surface mining operations for 
which the Department has forfeited bonds.
    As we noted in an October 24, 1991, rulemaking notice, the 
introductory language of subsection (a) of section 86.190, concerning 
the use of funds for other sites where reclamation of the forfeited 
site is unreasonable, unnecessary or physically impossible, mirrors the 
language of subsection (b), section 18, of PA SMCRA. See 56 FR 55085. 
This provision of Pennsylvania law was approved by the Secretary, as 
part of Pennsylvania's original permanent program approval.
    The reasons specified at section 86.190(a)(1), (a)(2), and (a)(3) 
for making a determination not to reclaim a site have not previously 
been approved by OSM. If as provided in paragraph (1) of subsection 
(a), the site has been re-permitted and re-bonded for mining with full 
reclamation of the entire area made a permit condition, then forfeited 
bond money from the original permit is not needed for reclamation of 
the site. Likewise, as provided in paragraph (2), forfeited bond money 
is not needed to reclaim the site if it has been otherwise reclaimed, 
as long as such reclamation was performed in compliance with the 
reclamation plan and in accordance with the performance standards of 
the Pennsylvania program. Therefore, while there are no specific 
Federal counterparts to paragraphs (1) and (2) of subsection (a) of 
section 86.190, we previously found that these provisions were not 
inconsistent with SMCRA and the Federal regulations and they were 
approved to the extent that full reclamation of the site in accordance 
with the reclamation plan and all applicable performance standards are 
required. The PADEP also amended Sec.  86.190(a)(3) by deleting this 
section. See Finding 4. Because the basis for the Secretary's approval 
of 18(b) of PASMCRA had not changed, the Director approved the 
introductory paragraph of subsection 86.190 (a) in an October 24, 1991, 
rulemaking, except for the words ``but are not limited to.'' Id.
    In response to this required amendment, Pennsylvania has amended 25 
Pa. Code 86.190(a) to delete the words ``but are not limited to'' to 
make clear that any reasons other than those specifically provided in 
25 Pa. Code 86.190(a) are not permissible. We find that the amendment 
to 25 Pa. Code 86.190(a) satisfies the requirements of 30 CFR 
938.16(qq) and can be approved. Therefore, the required program 
amendment codified in the Federal regulations at 30 CFR 938.16 (qq) can 
be removed.

6. Additional Change: 25 Pa Code 86.17(e)--Reclamation Fees

    Pennsylvania has amended this subsection to discontinue the 
collection of the $100 per acre reclamation fee from permittees under 
25 Pa. Code 86.17(e). The reclamation fee is deposited in the Surface 
Mining Conservation and Reclamation Fund (Fund) as a supplement to 
forfeited bonds and is used for reclaiming mining

[[Page 19120]]

operations which have defaulted on their obligation to reclaim mined 
sites.
    Because issues regarding the Fund's solvency had become apparent, 
PADEP revised its bonding requirements and is now requiring all mine 
permits to post a full cost reclamation bond. The PADEP believes that 
because all of its permittees are now subject to full cost bonding 
requirements, there is no longer a basis for maintaining the supplement 
(the per acre fee).
    The issue of whether OSM acted within its discretion when it 
concluded that the Fund is no longer subject to the requirements of 30 
CFR 800.11(e) is pending before the United States Court of Appeals for 
the Third Circuit in the matter of Pennsylvania Federation of 
Sportsmen's Clubs v. Norton, (PFSC v. Norton) No. 06-1780. The outcome 
of this case could affect whether OSM may approve the proposed change 
to 25 Pa. Code 86.17(e). Therefore, in the interest of judicial 
economy, we are deferring our decision on this proposed change until 
final disposition of the PFSC v. Norton matter.

7. Additional Change: 25 Pa Code 86.187(a)(1)--Money Received From the 
Fees

    Pennsylvania has amended 25 Pa. Code 86.187(a)(1) to correct a 
typographical error. In paragraph (a)(1), reference was improperly made 
to 25 Pa. Code 86.17(b) (relating to permit and reclamation fees). The 
correct reference is to 25 Pa. Code 86.17(e). We find that the amended 
citation at 25 Pa. Code 86.187(a)(1) corrects a citation error and does 
not render the Pennsylvania program inconsistent with SMCRA or the 
Federal Regulations and can be approved.

8. Additional Change: 25 Pa Code 86.188(b)(5) and (c)(3)--Evaluation of 
Bond Forfeiture Sites

    Pennsylvania has amended 25 Pa. Code 86.188 by deleting 25 Pa. Code 
86.188(b)(5) and 86.188(c)(3) in order to make it clear that bond 
forfeiture funds posted for and still needed to complete reclamation of 
the specific site for which the bonds were forfeited will not be used 
for reclamation of other sites until reclamation of the forfeited site 
has been completed.
    Currently, 25 Pa. Code 86.188(b) lists the categories in decreasing 
priority order to be used when the Department is considering bond 
forfeiture site reclamation. Subsection (b)(5) refers to ``other sites 
which need reclamation.'' Furthermore, section (c) lists the factors 
that the Department will consider in selecting sites for reclamation 
under 25 Pa. Code 86.189(b)(1). Subsection (c)(3) considers the 
availability of funds to accomplish the required reclamation of the 
site or that portion of the site which is threatening life, health, 
safety, other property or the environment.
    As noted in an October 24, 1991, rulemaking notice, subsections (b) 
and (c) were not approved by OSM to the extent that they would allow 
bond forfeiture funds posted for and needed to complete reclamation of 
a specific site to be used for reclamation of other sites. See 56 FR at 
55084. To the extent that these subsections provided only for a ranking 
of sites for reclamation without compromising the requirement that all 
sites for which bonds were posted be properly reclaimed, it was 
determined they were not inconsistent with section 509(a) of SMCRA and 
30 CFR 800.50(b)(2) of the Federal regulations.
    The PADEP is addressing the concerns expressed in the October 24, 
1991, rulemaking and is deleting the subsections (b)(5) and (c)(3) to 
remove any doubt that the PADEP intends to maintain adequate bonding to 
have funds available for completion of reclamation should the bonds be 
forfeited. We find that the amended regulations at 25 Pa. Code 
86.188(b) and (c) are not inconsistent with SMCRA or the Federal 
regulations and can be approved.

9. Additional Change: 25 Pa Code 86.283(c)--Reclamation Fees for 
Remining Areas

    Pennsylvania has amended 25 Pa. Code 86.283(c) to remove a 
reference to the per acre reclamation fee for remining areas for mine 
operators approved to participate in the financial guarantees program. 
PADEP has submitted this amendment to create consistency with the 
proposed amendment to 86.17(e) that would delete the per-acre 
reclamation fee requirement. See Finding 6 above.
    We are deferring our decision on the proposed amendment at 25 Pa. 
Code 86.283(c) for the same reason set forth above at Finding 6 in 
support of our deferral with respect to the proposed change at 
86.17(e).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. PA-793.17). We received comments from one organization, the 
Citizens for Pennsylvania's Future (PennFUTURE) (Administrative Record 
No. PA 793.18). PennFUTURE objected to the portion of the program 
amendment that would discontinue the collection of Pennsylvania's 
reclamation fee at 25 Pa. Code 86.17(e), and requested that we defer 
our decision on this proposed change until such time as the matter of 
PFSC v. Norton is decided by the United States Court of Appeals for the 
Third Circuit.
    As we noted above in Finding 6 above, we are deferring our decision 
with respect to the proposed amendment to 86.17(e), as well as on an 
ancillary proposed change at 86.283(c) (See Finding 9 above). Because 
we are deferring our decision, we will not respond to PennFUTURE's 
comments in opposition to these amendments in this rulemaking. Instead, 
we will respond to the comments in a future rulemaking, wherein we will 
decide whether or not to approve the proposed changes to 86.17(e) and 
86.283(c).

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 793.12). The Mine 
Safety and Health Administration (MSHA), District 1, responded 
(Administrative Record No. PA 793.13) and stated that it did not have 
any comments or concerns regarding this request. The Natural Resources 
Conservation Service responded (Administrative Record No. PA 793.14) 
and stated that it did not have any comments regarding this request.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under Federal regulations at 30 CFR 732.17(h)(11)(i) and (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.).
    None of the revisions that Pennsylvania proposed to make in this 
amendment pertain to air or water quality standards. Therefore, we did 
not ask EPA to concur on the amendment.
    On June 6, 2006, we requested comments on the amendment from EPA 
(Administrative Record No. PA 793.15). The EPA, Region III, responded 
and stated that it did not identify any inconsistencies with the Clean 
Water Act or any other statutes or regulations under its jurisdiction.

[[Page 19121]]

V. OSM's Decision

    Based on the above findings, we approve, with certain exceptions, 
the amendment Pennsylvania sent to us on May 23, 2006. We are removing 
the required program amendments codified in the Federal regulations at 
30 CFR 938.16(mm), (nn), (oo), (pp), and (qq) and approving two 
additional changes to the Pennsylvania program. We defer decision on 
two provisions regarding the reclamation fees at 25 Pa. Code 86.17(e) 
and 86.283(c). See Findings 6 and 9, respectively.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR 938, which codify decisions concerning the Pennsylvania 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

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.

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 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 
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

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on proposed State regulatory program provisions does 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)). 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 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 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 government 
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.

[[Page 19122]]

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 23, 2007.
H. Vann Weaver,
Acting Regional Director, Appalachian Region.

0
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 by adding a new entry in the table in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  938.15  Approval of Pennsylvania regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
May 23, 2006..................  April 17, 2007...  25 Pa. Code:
                                                    86.187(a)(1), (b),
                                                    (c); 86.188(b)(5)
                                                    [deleted];
                                                    86.188(c)(3)
                                                    [deleted];
                                                    86.189(c)(2) through
                                                    (c)(4) [deleted
                                                    reference to
                                                    (c)(5)], 86.189
                                                    (c)(5) [deleted];
                                                    86.190 (a) [the
                                                    words ``but are not
                                                    limited to'' are
                                                    deleted];
                                                    86.190(a)(3)
                                                    [deleted].
------------------------------------------------------------------------

Sec.  938.16   [Amended]

0
3. Section 938.16 is amended by removing and reserving paragraphs (mm), 
(nn), (oo), (pp), (qq).

 [FR Doc. E7-7227 Filed 4-16-07; 8:45 am]
BILLING CODE 4310-05-P