2024-18512. Pennsylvania Regulatory Program

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Department of the Interior

Office of Surface Mining Reclamation and Enforcement

1. 30 CFR Part 938
2. [SATS No. PA-175-FOR; Docket ID: OSM-2022-0003; S1D1S SS08011000 SX064A000 245S180110; S2D2S SS08011000 SX064A000 24XS501520]

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule.

SUMMARY:

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

DATES:

Effective August 19, 2024.

FOR FURTHER INFORMATION CONTACT:

Ben Owens, Acting Field Office Director, Pittsburgh Field Office, Office of Surface Mining Reclamation and Enforcement, 3 Parkway Center, Pittsburgh, PA 15220, Telephone: [phone], Email: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Discussion of Final Rule

II. Statutory and Executive Order Reviews

I. Discussion of Final Rule

By letter dated March 7, 2022 (SATS No. PA-175-FOR; Administrative Record No. OSM-2022-0003), Pennsylvania requested that we remove our previous disapprovals at 30 CFR 938.12(e)(1) and (2), which disapproved proposed 2006 revisions to Pennsylvania's regulations at Title 25 of the Pennsylvania Code (Pa. Code) 86.17(e) and 86.283(c). Pennsylvania believes that removal of the disapprovals will clarify that the deficiencies noted in the CFR were resolved and that no further action by Pennsylvania is required.

On May 23, 2006, Pennsylvania sent us an amendment to revise its program regulations at Title 25 of the Pa. Code (SATS No. PA-147-FOR; Administrative Record No. PA 793.11) in response to five required program amendments. See72 FR 19117 (Apr. 17, 2007). The proposed amendment also included four additional changes, which were made at Pennsylvania's own initiative. Two of the four additional changes that Pennsylvania proposed concerned money received from reclamation fees intended to supplement funding for the reclamation bond pool that supported its Alternative Bonding System (ABS). Pennsylvania contended that there was no longer a basis for maintaining the reclamation fee because the State had discontinued its ABS and revised its bonding regulations to require that all mine permits post a full-cost reclamation bond. Pennsylvania submitted a request to discontinue the collection of the $100 per acre reclamation fee authorized under 25 Pa. Code 86.17(e) by proposing the following sentence: “This fee shall not be required after (effective date of this rulemaking).”

Pennsylvania also proposed to amend Title 25 of the Pennsylvania Code by removing section 86.283(c) because it referenced the reclamation fee in relation to mine operators approved to participate in the remining financial guarantees program. Pennsylvania submitted the amendment to create consistency with the proposed amendment to section 86.17(e) that would delete the reclamation fee.

While we approved the other requested changes related to PA-147-FOR, we deferred our decision on the ( print page 66990) two changes pertaining to the discontinuation of a $100 per acre reclamation fee. We deferred our decision because aspects of Pennsylvania's decision to eliminate its ABS in favor of a conventional, or “full-cost,” bonding system had been challenged, and the matter was pending before the United States Court of Appeals for the Third Circuit in Pennsylvania Federation of Sportsmen's Clubs v. Kempthorne, 497 F.3d 337 (3d Cir. 2007). The Third Circuit in Kempthorne set aside our decision to rescind a requirement that we imposed on Pennsylvania in 1991, which had required Pennsylvania to submit information sufficient to demonstrate that the revenues generated by the collection of the reclamation fee under 25 Pa. Code 86.17(e) would assure that the State's bond pool fund satisfied our bonding requirements at 30 CFR 800.11(e). Following the Kempthorne decision, we disapproved Pennsylvania's proposed deletion of the reclamation fee under 25 Pa. Code 86.17(e) and related reference in 25 Pa. Code 86.283(c), see73 FR 38918 (July 8, 2008), and reinserted the 1991 required amendment at 30 CFR 938.16(h), see74 FR 12265 (Mar. 24, 2009).

Likewise, Pennsylvania revised its program to comply with the Third Circuit's judgment in Kempthorne. On August 1, 2008, Pennsylvania submitted a number of revisions that, among other things, retained the reclamation fee under 25 Pa. Code 86.17(e), making it adjustable on an annual basis in lieu of a fixed $100 per acre fee, and retained the related reference in 25 Pa. Code 86.283(c). On August 10, 2010, we approved Pennsylvania's revision to 25 Pa. Code 86.17(e) and retention of 25 Pa. Code 86.283(c). See75 FR 48526 (Aug. 10, 2010). The 2010 approval resolved our initial disapproval of Pennsylvania's proposed elimination of the reclamation fee. It also meant that the disapprovals at 30 CFR 938.12(e)(1) and (2) became moot. At Pennsylvania's request, we are removing 30 CFR 938.12(e)(1) and (2) in this final rule.

This final rule, which removes our disapproval of Pennsylvania's 2006 proposed amendment, does not entail any new substantive decisions on this or any other part of the Pennsylvania program, nor does it alter the terms of any of our prior decisions. Pennsylvania's letter of March 7, 2022, confirms that the state has implemented and will continue to implement 25 Pa. Code 86.17(e) and 25 Pa. Code 86.283(c) of its regulations in a manner consistent with our 2010 approval of the 2008 amendment.

II. Statutory and Executive Order Reviews

Administrative Procedure Act

We are publishing this final rule without prior public notice or opportunity for public comment. The Administrative Procedure Act, 5 U.S.C. 533, provides an exception to notice and comment requirements when an agency finds that there is good cause for dispensing with notice and comment procedures on the basis that they are impracticable, unnecessary, or contrary to the public interest. We have determined that under 5 U.S.C. 553(b)(3)(B), good cause exists for dispensing with the notice of proposed rulemaking and public comment procedures for this rule.

Specifically, we have determined that notice and comment is unnecessary for this rule because it is non-substantiative. As discussed above, this rule removes provisions concerning now-moot state program disapprovals for Pennsylvania that remained codified at 30 CFR 938.12(e). This rule neither imposes new regulatory requirements nor removes any existing regulatory requirements.

For the same reasons, we find that good cause exists under 5 U.S.C. 533(d)(3) to have the regulation become effective on a date that is less than 30 days after the date of publication in the Federal Register .

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

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

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

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

Executive Order 12988—Civil Justice Reform

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

Executive Order 13132—Federalism

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

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on the distribution of power and responsibilities between the Federal Government and Tribes. The basis for this determination is that our ( print page 66991) decision on the Pennsylvania program does not include Indian lands as defined by SMCRA or other Tribal lands and it does not affect the regulation of activities on Indian lands or other Tribal lands. Indian lands under SMCRA are regulated independently under the applicable Federal Indian program. The Department's consultation policy also acknowledges that our rules may have Tribal implications where the state proposing the amendment encompasses ancestral lands in areas with minable coal. We are currently working to identify and engage appropriate Tribal stakeholders to devise a constructive approach for consulting on these amendments.

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

Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rulemaking that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not significant energy action under the definition in Executive Order 13211, a Statement of Energy Effects is not required.

National Environmental Policy Act

Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1292(d), respectively) and the U.S. Department of the Interior Departmental Manual, part 516, section 13.5(A), State program amendments are not major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

This rule does not include requests and requirements of an individual, partnership, or corporation to obtain information and report it to a Federal agency. As this rule does not contain information collection requirements, a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required.

Regulatory Flexibility Act

This rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject of this rule, requests that we correct the CFR to accurately reflect our prior approval of parts of the Pennsylvania program, and therefore, would not have a significant economic effect upon a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based on the nature of this rule, in which we do not make any substantive decision.

Unfunded Mandates Reform Act

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

List of Subjects in 30 CFR Part 938

• Intergovernmental relations
• Surface mining
• Underground mining

Thomas D. Shope,

Regional Director, North Atlantic—Appalachian Region.

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

PART 938—PENNSYLVANIA

1. The authority citation for part 938 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

§ 938.12

Amended]

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