Pennsylvania Regulatory Program, 60944-60947 [E8-24477]
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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:
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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
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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;
*
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*
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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
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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
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Division, Telephone: (717) 782–4036, email: grieger@osmre.gov.
SUPPLEMENTARY INFORMATION:
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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
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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
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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
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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.
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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
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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.).
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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:
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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.
*
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*
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. * * *
*
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*
Obstruction angle
relative ship’s
headings
Vessel
Number
USV ........................................
11MUCO601, 11MUCO602, 11MUC0603, 11MUC0604 .......................................................
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*
Forward
anchor
light, distance
below flight
dk in meters: § 2(k),
Annex I
11MUC0603,
*
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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.
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]]>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]
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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.
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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.
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For the reasons set out in the preamble, 30 CFR part 938 is amended as
set forth below:
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PART 938--PENNSYLVANIA
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1. The authority citation for part 938 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 938.16 [Amended]
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2. In Sec. 938.16, remove paragraph (h).
[FR Doc. E8-24477 Filed 10-14-08; 8:45 am]
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