Pennsylvania Regulatory Program, 60944-60947 [E8-24477]

Download as PDF 60944 Federal Register / Vol. 73, No. 200 / Wednesday, October 15, 2008 / Rules and Regulations vessels are required to report their arrival pursuant to § 4.2, CBP regulations (19 CFR 4.2). Generally, foreign-flag yachts entering the United States are required to comply with the laws applicable to foreign vessels arriving at, departing from, and proceeding between ports of the United States. However, as provided in § 4.94(b), CBP regulations (19 CFR 4.94(b)), CBP may issue cruising licenses to pleasure vessels from certain countries if it is found that yachts of the United States are exempt from formal entry and clearance procedures (e.g., filing manifests, obtaining permits to proceed and paying entry and clearance fees) in those countries. If a foreign-flag yacht is issued a cruising license, the yacht, for a stated period not to exceed one year, may arrive and depart from the United States and to cruise in specified waters of the United States without entering and clearing, without filing manifests and obtaining or delivering permits to proceed, and without the payment of entrance and clearance fees, or fees for receiving manifests and granting permits to proceed, duty on tonnage, tonnage tax, or light money. Upon arrival at each port in the United States, the master of a foreign-flag yacht with a cruising license must report the fact of arrival to the appropriate CBP office. A list of countries whose yachts are eligible for cruising licenses is set forth in § 4.94(b). By an undated letter received on May 1, 2007, the Department of State informed the Chief, Cargo Security, Carriers and Immigration Branch, CBP, that the British Embassy has advised that the listing for Great Britain in § 4.94(b) requires updating. The Department of State recommends that the reference in § 4.94(b) for Great Britain be revised to read as follows: erowe on PROD1PC64 with RULES United Kingdom and the Dependencies: the Anguilla Islands, the Isle of Man, the British Virgin Islands, the Cayman Islands, and the Turks and Caicos Islands. Additionally, the Department of State recommends that Saint Vincent and the Grenadines; and Saint Kitts and Nevis (formerly the Federation of Saint Christopher and Nevis) be listed separately from the United Kingdom as they are now independent countries. The Chief, Cargo Security, Carriers and Immigration Branch has found, based on the information provided, that the reciprocity required in § 4.94(b) has been established with respect to the above-referenced countries effective May 1, 2007. Accordingly, under the authority of 46 U.S.C. 60504, yachts from the above-referenced countries VerDate Aug<31>2005 15:10 Oct 14, 2008 Jkt 214001 used only for pleasure may arrive at and depart from the ports of the United States and cruise in the waters of the United States without payment of any duties or fees. The list of countries in § 4.94(b) is being revised in this final rule document as discussed above. The authority to amend this section of the CBP regulations has been delegated to the Chief, Trade and Commercial Regulations Branch, Regulations and Rulings, Office of International Trade. Inapplicability of Notice and Delayed Effective Date § 4.94 [Amended] 2. In § 4.94, the list of countries in paragraph (b) is amended by removing the words ‘‘Great Britain (including Turks and Caicos Islands; St. Vincent (including the territorial waters of the Northern Grenadine Islands), the Cayman Islands, the St. ChristopherNevis-Anguilla Islands and the British Virgin Islands)’’ and adding, in appropriate alphabetical order, the words ‘‘Saint Vincent and the Grenadines’’, ‘‘Saint Kitts and Nevis,’’ and ‘‘United Kingdom and the Dependencies: the Anguilla Islands, the Isle of Man, the British Virgin Islands, the Cayman Islands, and the Turks and Caicos Islands’’. ■ Because these amendments merely implement a statutory requirement and confer a benefit upon the public, CBP has determined that notice and public procedure are unnecessary pursuant to section 553(b)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(B)). Further, for the same reasons, good cause exists for dispensing with a delayed effective date under section 553(d)(3) of the APA (5 U.S.C. 553(d)(3)). Dated: October 9, 2008. Joanne R. Stump, Chief, Trade and Commercial Regulations Branch, Regulations and Rulings, Office of International Trade. [FR Doc. E8–24523 Filed 10–14–08; 8:45 am] Regulatory Flexibility Act and Executive Order 12866 DEPARTMENT OF THE INTERIOR Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply. This amendment does not meet the criteria for a ‘‘significant regulatory action’’ as specified in Executive Order 12866. This document is being issued by CBP in accordance with § 0.1(b)(1) of the CBP regulations (19 CFR 0.1(b)(1)). List of Subjects in 19 CFR Part 4 Customs duties and inspection, Maritime carriers, Vessels, Yachts. Amendments to the CBP Regulations For the reasons set forth above, part 4 of title 19 of the Code of Federal Regulations (19 CFR part 4) is amended as set forth below. ■ PART 4—VESSELS IN FOREIGN AND DOMESTIC TRADES 1. The general authority citation for part 4 and the specific authority for § 4.94 continue to read as follows: ■ Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624, 2071 note; 46 U.S.C. 501, 60105. * * * * * Section 4.94 also issued under 19 U.S.C. 1441; 46 U.S.C. 60504; * * * * * Frm 00006 Fmt 4700 Office of Surface Mining Reclamation and Enforcement 30 CFR Part 938 [PA–152–FOR; Docket ID: OSM–2008–0019] Pennsylvania Regulatory Program Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Final Rule; rescission of a modified required amendment. AGENCY: Signing Authority PO 00000 BILLING CODE 9111–14–P Sfmt 4700 SUMMARY: We are announcing a rescission of a required amendment that we imposed, in modified form, upon the Pennsylvania regulatory program (the ‘‘Pennsylvania program’’) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). We had modified a previous version of the required amendment, which we originally imposed in 1991. The United States Court of Appeals for the Third Circuit, and the United States District Court for the Middle District of Pennsylvania, on remand from the Third Circuit, set aside our termination of the 1991 required amendment. We are rescinding the modified required amendment because under those court actions, no action on our part was necessary to implement the Courts’ orders. DATES: Effective Date: October 15, 2008. FOR FURTHER INFORMATION CONTACT: George Rieger, Chief, Pittsburgh Field E:\FR\FM\15OCR1.SGM 15OCR1 Federal Register / Vol. 73, No. 200 / Wednesday, October 15, 2008 / Rules and Regulations Division, Telephone: (717) 782–4036, email: grieger@osmre.gov. SUPPLEMENTARY INFORMATION: erowe on PROD1PC64 with RULES I. Background on the Pennsylvania Program II. The Modified Required Amendment III. The Basis for Rescission of the Modified Required Amendment IV. OSM’s Decision V. 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. From 1982 until 2001, Pennsylvania’s bonding program for surface coal mines, coal refuse reprocessing operations and coal preparation plants, was funded under an Alternative Bonding System (ABS), which included a central pool of money (Surface Mining Conservation and Reclamation Fund) used for reclamation, to supplement site-specific bonds posted by operators for each mine site. This pool was funded by a per-acre reclamation fee paid by operators of permitted sites. In 1991, our oversight activities determined that Pennsylvania’s ABS contained unfunded reclamation liabilities for backfilling, grading, and revegetation and we determined that the ABS was financially incapable of abating or treating pollutional discharges from bond forfeiture sites under its purview. As a result, on May 31, 1991, we imposed the required amendment codified at 30 CFR 938.16(h), 56 FR 24687. That amendment required Pennsylvania to demonstrate that the revenues generated by its collection of the reclamation fee would assure that its Surface Mining Conservation and Reclamation Fund (Fund) could be operated in a manner that would meet the ABS requirements contained in 30 CFR 800.11(e). After a decade of trying to address the problems with the ABS, the Pennsylvania Department of Environmental Protection (PADEP) terminated the ABS in 2001 and began converting active surface coal mining permits to a Conventional VerDate Aug<31>2005 15:10 Oct 14, 2008 Jkt 214001 Bonding System (CBS) or ‘‘full-cost’’ bonding program. This CBS requires a permittee to post a site specific bond in an amount sufficient to cover the estimated costs to complete reclamation in the event of bond forfeiture. OSM published a final rule on October 7, 2003 removing the required amendment at 30 CFR 938.16(h) on the basis that the conversion from an ABS to a CBS rendered the requirement to comply with 30 CFR 800.11(e) moot. Subsequent to these OSM actions, a lawsuit was filed in the U.S. District Court for the Middle District Court of Pennsylvania, Pennsylvania Federation of Sportsmen’s Clubs Inc. (PFSC) et al. v. Norton No. 1:03–CV–2220. The district court ruled in OSM’s favor, but was reversed by the United States Court of Appeals for the Third Circuit. Subsequently, on November 1, 2007, the District court set aside our October 7, 2003, termination of the 1991 required amendment. The appellate court’s decision is discussed in the section below. 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. The Modified Required Amendment On August 2, 2007, the United States Court of Appeals for the Third Circuit decided PFSC v. Kempthorne, 497 F.3d 337 (3rd Cir. 2007). At issue, relevant to this notice, was whether OSM properly terminated the requirement that Pennsylvania demonstrate that its Surface Mining Conservation and Reclamation Fund was in compliance with 30 CFR 800.11(e). The Third Circuit concluded: ‘‘while it is true that the ‘ABS Fund’ continues to exist in name, it no longer operates as an ABS, that is, as a bond pool, to provide liability coverage for new and existing mining sites.’’ 497 F.3d at 349. However, the Court went on to conclude that ‘‘800.11(e) continues to apply to sites forfeited prior to the CBS conversion.’’ Id. at 353. In commenting further on 30 CFR 800.11(e), the Court stated ‘‘The plain language of this provision requires that Pennsylvania demonstrate adequate funding for mine discharge abatement and treatment at all ABS forfeiture sites.’’ Id. at 354. Because the Third Circuit in PFSC v. Kempthorne, Id., reversed the District Court, which had upheld our termination of the 1991 required PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 60945 amendment at 30 CFR 938.16(h), we decided to impose a modified version of amendment ‘‘(h),’’ which we believed was fully consistent with the rationale of the Third Circuit’s decision while accounting for circumstances which had changed since 1991. Issuance of this modified required amendment was announced in the July 8, 2008, Federal Register at 73 FR 38918. It is this modified version of the required amendment that we are hereby rescinding in this action. III. The Basis for Rescission of the Modified Required Amendment After we published the modified version of 30 CFR 938.16(h), the Pennsylvania Federation of Sportsmen’s Clubs, along with the other Plaintiffs, filed a Motion to Reopen, to Substitute Party, and for Contempt in the matter of PFSC v. Kempthorne, No. 1:03–CV–2220 (M.D. Pa.). The Plaintiffs alleged that the Federal Defendants were in contempt of the district court’s November 1, 2007, order on remand from the Third Circuit decision in PFSC v. Kempthorne, 497 F.3d 337 (3rd Cir. 2007), because they revised 30 CFR 938.16(h) from its 1991 form. The Plaintiffs contend that the Federal Defendants disobeyed the district court’s order, which the Plaintiffs claim did not authorize any modification to the required amendment. PFSC v. Kempthorne, No. 1:03–CV–2220 (M.D. Pa.) (Motion to Reopen, to Substitute Party, and for Contempt filed July 16, 2008) In order to resolve the matter of the contempt proceeding, and without admitting any liability with respect to the Plaintiffs’ allegations put forth in said proceeding, we have decided to rescind the revised version of the required amendment at 30 CFR 938.16(h). Thus, any potential conflict with the district court’s November 1, 2007, Order on Remand, which set aside our decision to remove the 1991 required amendment, is hereby removed. IV. OSM’s Decision Based on the above discussion, we hereby rescind the required amendment at 30 CFR 938.16(h), as it was revised in the July 8, 2008, Federal Register at 73 FR 38918. This rule is being issued without prior public notice or opportunity for public comment. The Administrative Procedure Act (APA) (5 U.S.C. 553) provides an exception to the notice and comment procedures when an agency finds there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary or contrary to the public interest. In view E:\FR\FM\15OCR1.SGM 15OCR1 60946 Federal Register / Vol. 73, No. 200 / Wednesday, October 15, 2008 / Rules and Regulations of the litigation and court order, 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. For the same reason, we believe there is good cause under 5 U.S.C. 553(d)(3) of the APA to have the rule become effective on a date that is less than 30 days after the date of publication in the Federal Register. This rescission is being made effective immediately in order to encourage Pennsylvania to bring its program into conformity with the Federal standards without undue delay. Consistency of State and Federal standards is required by SMCRA. V. 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. erowe on PROD1PC64 with RULES 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 VerDate Aug<31>2005 15:10 Oct 14, 2008 Jkt 214001 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 Federallyrecognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal program involving Indian lands. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major Federal action within the meaning of Section 102(2)(C) of the National Environmental Policy Act (NEPA) (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.). PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 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. List of Subjects in 30 CFR Part 938 Intergovernmental relations, Surface mining, Underground mining. Dated: September 5, 2008. Thomas D. Shope, Regional Director, Appalachian Region. For the reasons set out in the preamble, 30 CFR part 938 is amended as set forth below: ■ E:\FR\FM\15OCR1.SGM 15OCR1 Federal Register / Vol. 73, No. 200 / Wednesday, October 15, 2008 / Rules and Regulations FOR FURTHER INFORMATION CONTACT: PART 938—PENNSYLVANIA 1. The authority citation for part 938 continues to read as follows: ■ Authority: 30 U.S.C. 1201 et seq. § 938.16 ■ [Amended] 2. In § 938.16, remove paragraph (h). [FR Doc. E8–24477 Filed 10–14–08; 8:45 am] BILLING CODE 4310–05–P DEPARTMENT OF DEFENSE Department of the Navy 32 CFR Part 706 Certifications and Exemptions Under the International Regulations for Preventing Collisions at Sea, 1972 Department of the Navy, DOD. Final rule. AGENCY: ACTION: The Department of the Navy is amending its certifications and exemptions under the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), to reflect that the Deputy Assistant Judge Advocate General (Admiralty and Maritime Law) has determined that Unmanned Surface Vehicles with hull numbers 11MUC0601, 11MUC0602, 11MUC0603 and 11MUCO604, are vessels of the Navy which, due to their special construction and purpose, cannot fully comply with certain provisions of the 72 COLREGS without interfering with their special function as naval vessels. The intended effect of this rule is to warn mariners in waters where 72 COLREGS apply. DATES: This rule is effective October 15, 2008 and is applicable beginning 16 June 2008). SUMMARY: Vessel USV .... * * Commander M. Robb Hyde, JAGC, U.S. Navy, Deputy Assistant Judge Advocate General (Admiralty and Maritime Law), Office of the Judge Advocate General, Department of the Navy, 1322 Patterson Ave., SE., Suite 3000, Washington Navy Yard, DC 20374–5066, telephone 202– 685–5040. SUPPLEMENTARY INFORMATION: Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR Part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that Unmanned Surface Vehicles with hull numbers 11MUC0601, 11MUC0602, 11MUC0603 and 11MUCO604 are vessels of the Navy which, due to their special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Rule 21(a), pertaining to the position of the masthead light or lights being located over the fore and aft centerline of the vessel; Annex I, paragraph 2(f)(i), pertaining to the placement of the masthead light or lights above and clear of all other lights and obstructions; Rule 27(b)(i), pertaining to the placement of three all-round lights in a vertical line and Annex I, paragraph 2(i)(ii), pertaining to the vertical separation of the Restricted Maneuvering Light Array lights. The Deputy Assistant Judge Advocate General (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements. Moreover, it has been determined, in accordance with 32 CFR Parts 296 and 701, that publication of this amendment * * List of Subjects in 32 CFR Part 706 Marine safety, Navigation (water), and Vessels. ■ For the reasons set forth in the preamble, amend part 706 of title 32 of the Code of Federal Regulations as follows: PART 706—CERTIFICATIONS AND EXEMPTIONS UNDER THE INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA, 1972 1. The authority citation for part 706 continues to read: ■ Authority: 33 U.S.C. 1605. 2. Section 706.2 is amended as follows: ■ A. In Table Two, by adding, at the end of the table under the ‘‘Vessel’’ category, the following entry for Unmanned Surface Vehicles with hull numbers 11MUC0601, 11MUC0602, 11MUC0603 and 11MUCO604: ■ B. In Table Four, Paragraph Sixteen by adding, at the end of the table under the ‘‘Vessel’’ category, the following entry for Unmanned Surface Vehicles with hull numbers 11MUC0601, 11MUC0602, 11MUC0603 and 11MUCO604: ■ C. In Table Four by adding new paragraphs 23 and 24: ■ § 706.2 Certifications of the Secretary of the Navy under Executive Order 11964 and 33 U.S.C. 1605. * * * * Forward anchor light, number of; Rule 30(a)(i) AFT anchor light, distance below flight dk in meters; Rule 21(e), Rule 30(a)(ii) AFT anchor light, number of; Rule 30(a)(ii) Side lights, distance below flight dk in meters; § 2(g), Annex I Side lights, distance forward of forward masthead light in meters; § 3(b), Annex I Side lights, distance inboard of ship’s sides in meters; § 3(b), Annex I 0.40 .................. .................. .................. .................. .................. .................. .................. * Table 4 * 16. * * * * * * Obstruction angle relative ship’s headings Vessel Number USV ........................................ 11MUCO601, 11MUCO602, 11MUC0603, 11MUC0604 ....................................................... VerDate Aug<31>2005 15:10 Oct 14, 2008 * Forward anchor light, distance below flight dk in meters: § 2(k), Annex I 11MUC0603, * erowe on PROD1PC64 with RULES for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel’s ability to perform its military functions. Masthead lights, distance to stbd of keel in meters; Rule 21(a) Number 11MUC0601, 11MUC0602, 11MUC0604. 60947 Jkt 214001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\15OCR1.SGM 15OCR1 271° thru 278°.

Agencies

[Federal Register Volume 73, Number 200 (Wednesday, October 15, 2008)]
[Rules and Regulations]
[Pages 60944-60947]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-2]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-152-FOR; Docket ID: OSM-2008-0019]


Pennsylvania Regulatory Program

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

ACTION: Final Rule; rescission of a modified required amendment.

-----------------------------------------------------------------------

SUMMARY: We are announcing a rescission of a required amendment that we 
imposed, in modified form, upon the Pennsylvania regulatory program 
(the ``Pennsylvania program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). We had modified a previous 
version of the required amendment, which we originally imposed in 1991. 
The United States Court of Appeals for the Third Circuit, and the 
United States District Court for the Middle District of Pennsylvania, 
on remand from the Third Circuit, set aside our termination of the 1991 
required amendment. We are rescinding the modified required amendment 
because under those court actions, no action on our part was necessary 
to implement the Courts' orders.

DATES: Effective Date: October 15, 2008.

FOR FURTHER INFORMATION CONTACT: George Rieger, Chief, Pittsburgh Field

[[Page 60945]]

Division, Telephone: (717) 782-4036, e-mail: grieger@osmre.gov.

SUPPLEMENTARY INFORMATION: 

I. Background on the Pennsylvania Program
II. The Modified Required Amendment
III. The Basis for Rescission of the Modified Required Amendment
IV. OSM's Decision
V. 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.
    From 1982 until 2001, Pennsylvania's bonding program for surface 
coal mines, coal refuse reprocessing operations and coal preparation 
plants, was funded under an Alternative Bonding System (ABS), which 
included a central pool of money (Surface Mining Conservation and 
Reclamation Fund) used for reclamation, to supplement site-specific 
bonds posted by operators for each mine site. This pool was funded by a 
per-acre reclamation fee paid by operators of permitted sites.
    In 1991, our oversight activities determined that Pennsylvania's 
ABS contained unfunded reclamation liabilities for backfilling, 
grading, and revegetation and we determined that the ABS was 
financially incapable of abating or treating pollutional discharges 
from bond forfeiture sites under its purview. As a result, on May 31, 
1991, we imposed the required amendment codified at 30 CFR 938.16(h), 
56 FR 24687. That amendment required Pennsylvania to demonstrate that 
the revenues generated by its collection of the reclamation fee would 
assure that its Surface Mining Conservation and Reclamation Fund (Fund) 
could be operated in a manner that would meet the ABS requirements 
contained in 30 CFR 800.11(e). After a decade of trying to address the 
problems with the ABS, the Pennsylvania Department of Environmental 
Protection (PADEP) terminated the ABS in 2001 and began converting 
active surface coal mining permits to a Conventional Bonding System 
(CBS) or ``full-cost'' bonding program. This CBS requires a permittee 
to post a site specific bond in an amount sufficient to cover the 
estimated costs to complete reclamation in the event of bond 
forfeiture.
    OSM published a final rule on October 7, 2003 removing the required 
amendment at 30 CFR 938.16(h) on the basis that the conversion from an 
ABS to a CBS rendered the requirement to comply with 30 CFR 800.11(e) 
moot. Subsequent to these OSM actions, a lawsuit was filed in the U.S. 
District Court for the Middle District Court of Pennsylvania, 
Pennsylvania Federation of Sportsmen's Clubs Inc. (PFSC) et al. v. 
Norton No. 1:03-CV-2220. The district court ruled in OSM's favor, but 
was reversed by the United States Court of Appeals for the Third 
Circuit. Subsequently, on November 1, 2007, the District court set 
aside our October 7, 2003, termination of the 1991 required amendment. 
The appellate court's decision is discussed in the section below.
    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. The Modified Required Amendment

    On August 2, 2007, the United States Court of Appeals for the Third 
Circuit decided PFSC v. Kempthorne, 497 F.3d 337 (3rd Cir. 2007). At 
issue, relevant to this notice, was whether OSM properly terminated the 
requirement that Pennsylvania demonstrate that its Surface Mining 
Conservation and Reclamation Fund was in compliance with 30 CFR 
800.11(e).
    The Third Circuit concluded: ``while it is true that the `ABS Fund' 
continues to exist in name, it no longer operates as an ABS, that is, 
as a bond pool, to provide liability coverage for new and existing 
mining sites.'' 497 F.3d at 349. However, the Court went on to conclude 
that ``800.11(e) continues to apply to sites forfeited prior to the CBS 
conversion.'' Id. at 353. In commenting further on 30 CFR 800.11(e), 
the Court stated ``The plain language of this provision requires that 
Pennsylvania demonstrate adequate funding for mine discharge abatement 
and treatment at all ABS forfeiture sites.'' Id. at 354.
    Because the Third Circuit in PFSC v. Kempthorne, Id., reversed the 
District Court, which had upheld our termination of the 1991 required 
amendment at 30 CFR 938.16(h), we decided to impose a modified version 
of amendment ``(h),'' which we believed was fully consistent with the 
rationale of the Third Circuit's decision while accounting for 
circumstances which had changed since 1991. Issuance of this modified 
required amendment was announced in the July 8, 2008, Federal Register 
at 73 FR 38918. It is this modified version of the required amendment 
that we are hereby rescinding in this action.

III. The Basis for Rescission of the Modified Required Amendment

    After we published the modified version of 30 CFR 938.16(h), the 
Pennsylvania Federation of Sportsmen's Clubs, along with the other 
Plaintiffs, filed a Motion to Reopen, to Substitute Party, and for 
Contempt in the matter of PFSC v. Kempthorne, No. 1:03-CV-2220 (M.D. 
Pa.). The Plaintiffs alleged that the Federal Defendants were in 
contempt of the district court's November 1, 2007, order on remand from 
the Third Circuit decision in PFSC v. Kempthorne, 497 F.3d 337 (3rd 
Cir. 2007), because they revised 30 CFR 938.16(h) from its 1991 form. 
The Plaintiffs contend that the Federal Defendants disobeyed the 
district court's order, which the Plaintiffs claim did not authorize 
any modification to the required amendment. PFSC v. Kempthorne, No. 
1:03-CV-2220 (M.D. Pa.) (Motion to Reopen, to Substitute Party, and for 
Contempt filed July 16, 2008)
    In order to resolve the matter of the contempt proceeding, and 
without admitting any liability with respect to the Plaintiffs' 
allegations put forth in said proceeding, we have decided to rescind 
the revised version of the required amendment at 30 CFR 938.16(h). 
Thus, any potential conflict with the district court's November 1, 
2007, Order on Remand, which set aside our decision to remove the 1991 
required amendment, is hereby removed.

IV. OSM's Decision

    Based on the above discussion, we hereby rescind the required 
amendment at 30 CFR 938.16(h), as it was revised in the July 8, 2008, 
Federal Register at 73 FR 38918.
    This rule is being issued without prior public notice or 
opportunity for public comment. The Administrative Procedure Act (APA) 
(5 U.S.C. 553) provides an exception to the notice and comment 
procedures when an agency finds there is good cause for dispensing with 
such procedures on the basis that they are impracticable, unnecessary 
or contrary to the public interest. In view

[[Page 60946]]

of the litigation and court order, 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. For 
the same reason, we believe there is good cause under 5 U.S.C. 
553(d)(3) of the APA to have the rule become effective on a date that 
is less than 30 days after the date of publication in the Federal 
Register. This rescission is being made effective immediately in order 
to encourage Pennsylvania to bring its program into conformity with the 
Federal standards without undue delay. Consistency of State and Federal 
standards is required by SMCRA.

V. 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 a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of Section 
102(2)(C) of the National Environmental Policy Act (NEPA) (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.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 5, 2008.
Thomas D. Shope,
Regional Director, Appalachian Region.

0
For the reasons set out in the preamble, 30 CFR part 938 is amended as 
set forth below:

[[Page 60947]]

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.  938.16  [Amended]

0
2. In Sec.  938.16, remove paragraph (h).

[FR Doc. E8-24477 Filed 10-14-08; 8:45 am]
BILLING CODE 4310-05-P