Federal Register / Vol. 76, No. 64 / Monday, April 4, 2011 / Proposed Rules 18467 

The Commission recognizes the 

concern expressed in comments 

regarding the use of TACs. Additionally, 

the Commission also recognizes the 

potential benefit of a TAC, particularly 

when addressing a complex or technical 

regulation. While the Commission 

agrees with those comments suggesting 

a regulation may not be necessary, the 

Commission will consider drafting a 

policy guiding the development of a 

TAC, member selection, and meeting 

rules. The Commission anticipates that 

a TAC policy will be developed during 

2011. The process for developing a TAC 

policy will be consistent with the 

NIGC’s Tribal Consultation policy. 

B. Communication Policy 

The NOI asked whether the NIGC 

should consider developing a regulation 

or include as part of a regulation a 

process for determining how it 

communicates with Tribes. The NOI 

noted that NIGC communicates directly 

with the Tribal Gaming Regulatory 

Agency (TGRA) or Tribal Gaming 

Commission (TGC) as well as directly 

with the tribal government. The NOI 

asked whether the NIGC should 

consider promulgating a regulation or 

policy establishing a default method of 

communication unless otherwise 

directed by tribal resolution. 

Many comments recommended that 

the Commission should not consider 

adopting a universal standard for 

communicating with Tribes. Tribes 

noted the variety in government 

structures and methods used by Tribes 

when taking official action. However, 

Tribes also noted the need for more 

effective communication with all 

affected parties, including the elected 

government officials, TGC, TGRA and 

the gaming operation. While the 

Commission agrees with those 

comments suggesting a regulation may 

not be necessary, the Commission will 

consider drafting a policy guiding how 

the Commission communicates with 

Tribes, their gaming regulatory bodies, 

and the gaming operation. This 

Commission anticipates that a policy 

will be developed over the course of the 

regulatory review process outlined 

above. The process for developing a 

Communication policy will be 

consistent with NIGC’s Tribal 

Consultation policy. 

C. Other Regulations 

During this review process, the 

Commission attempted to identify those 

regulations identified by Tribes and/or 

the Commission in most need of review. 

However, the Commission reserves the 

right to review other regulations if 

needed throughout this review process. 

Review of regulations not specifically 

identified in this Notice will be 

reviewed utilizing the process described 

in Section IIB of this Notice. 

Authority: 25 U.S.C. 2706(b)(10); E.O. 

13175. 

Dated: March 30, 2011, Washington, DC. 

Tracie L. Stevens, 

Chairwoman. 

Steffani A. Cochran, 

Vice-Chairwoman. 

Daniel J. Little, 

Associate Commissioner. 

[FR Doc. 2011–7912 Filed 4–1–11; 8:45 am] 

BILLING CODE 7565–01–P 

DEPARTMENT OF LABOR 

Mine Safety and Health Administration 

30 CFR Part 104 

RIN 1219–AB73 

Pattern of Violations 

AGENCY: Mine Safety and Health 

Administration, Labor. 

ACTION: Proposed rule; extension of 

comment period. 

SUMMARY: The Mine Safety and Health 

Administration (MSHA) is extending 

the comment period on the proposed 

rule addressing Pattern of Violations 

(POV). This extension gives commenters 

additional time to review and comment 

on the proposed rule. 

DATES: All comments must be received 

or postmarked by midnight Eastern 

Daylight Savings Time on April 18, 

2011. 

ADDRESSES: Submit comments by any of 

the following methods. Comments must 

be identified with ‘‘RIN 1219–AB73’’ in 

the subject line of the message. 

• Federal e-Rulemaking Portal: 

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

• Electronic mail: zzMSHAcomments@dol.gov. 

• Facsimile: 202–693–9441. 

• Regular Mail or Courier: MSHA, 

Office of Standards, Regulations, and 

Variances, 1100 Wilson Boulevard, 

Room 2350, Arlington, Virginia 22209– 

3939. Courier must sign in at the 

receptionist’s desk on the 21st floor. 

FOR FURTHER INFORMATION CONTACT: 

Roslyn B. Fontaine, Chief, Regulatory 

Development Division, Office of 

Standards, Regulations, and Variances, 

MSHA, at fontaine.roslyn@dol.gov (email); 202–693–9440 (voice); or 202– 

693–9441 (facsimile). 

SUPPLEMENTARY INFORMATION: 

Availability of Information 

View Public Comments: MSHA will 

post all comments on the Internet 

without change, including any personal 

information provided. Access comments 

electronically at http://www.msha.gov/ 

REGS/Comments/2011-2255/POV.asp or 

at http://www.regulations.gov. Review 

comments in person at MSHA, Office of 

Standards, Regulations, and Variances, 

at the address in the ADDRESSES section 

above. 

E-mail notification: To subscribe to 

receive e-mail notification when the 

Agency publishes rulemaking 

documents in the Federal Register, go 

to: http://www.msha.gov/subscriptions/ 

subscribe.aspx. 

Extension of Comment Period and 

Request for Comments 

On February 2, 2011 (76 FR 5719), 

MSHA published a proposed rule on 

Pattern of Violations (POV). In response 

to requests from interested parties, 

MSHA is extending the comment period 

from April 4, 2011, to April 18, 2011. 

MSHA solicits comments from the 

mining community on all aspects of the 

proposed rule. The proposed rule is 

available on MSHA’s Web site at 

http://www.msha.gov/REGS/FEDREG/ 

PROPOSED/2011PROP/2011-2255.pdf. 

Dated: March 30, 2011. 

Joseph A. Main, 

Assistant Secretary of Labor for Mine Safety 

and Health. 

[FR Doc. 2011–7975 Filed 4–1–11; 8:45 am] 

BILLING CODE 4510–43–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 938 

[SATS No. PA–156–FOR; Docket ID: OSM 

2010–0004] 

Pennsylvania Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement (OSM), 

Interior. 

ACTION: Proposed rule; reopening of the 

public comment period. 

SUMMARY: We are reopening the public 

comment period related to an 

amendment to the Pennsylvania 

regulatory program (the ‘‘Pennsylvania 

program’’) under the Surface Mining 

Control and Reclamation Act of 1977 

(SMCRA or the Act). The amendment is 

in response to fourteen required 

program amendments and the remining 

financial guarantee program. The 

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18468 Federal Register / Vol. 76, No. 64 / Monday, April 4, 2011 / Proposed Rules 

comment period is being extended to 

incorporate subsequent information that 

we received on two occasions from 

Pennsylvania. Taken together, the 

submissions specifically address fifteen 

required program amendments and the 

remining financial guarantee program. 

Pennsylvania intends to revise its 

program to be consistent with the 

corresponding Federal regulations. This 

document gives the times and locations 

that the Pennsylvania program and this 

submittal are available for your 

inspection, the comment period during 

which you may submit written 

comments, and the procedures that we 

will follow for the public hearing, if one 

is requested. 

DATES: We will accept written 

comments until 4 p.m., local time May 

4, 2011. If requested, we will hold a 

public hearing on April 29, 2011. We 

will accept requests to speak until 

4 p.m., local time on April 19, 2011. 

ADDRESSES: You may submit comments, 

identified by ‘‘PA–156–FOR; Docket ID: 

OSM–2010–0004’’ by either of the 

following two methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. The proposed rule 

has been assigned Docket ID: OSM– 

2010–0004. If you would like to submit 

comments through the Federal 

eRulemaking Portal, go to http:// 

www.regulations.gov and follow the 

instructions. 

Mail/Hand Delivery/Courier: Mr. 

George Rieger, Chief, Pittsburgh Field 

Division, Office of Surface Mining 

Reclamation and Enforcement, 

Harrisburg Transportation Center, 415 

Market St., Suite 304, Harrisburg, 

Pennsylvania 17101. 

Instructions: For detailed instructions 

on submitting comments and additional 

information on the rulemaking process, 

see the Public Comment Procedures 

heading of the SUPPLEMENTARY

INFORMATION section of this document. 

Docket: In addition to obtaining 

copies of documents at http:// 

www.regulations.gov, information may 

also be obtained at the addresses listed 

below during normal business hours, 

Monday through Friday, excluding 

holidays. You may receive one free copy 

of the amendment by contacting OSM’s 

Pittsburgh Field Division Office. 

George Rieger, Chief, Pittsburgh Field 

Division, Office of Surface Mining 

Reclamation and Enforcement, 

Harrisburg Transportation Center, 415 

Market St., Suite 304, Harrisburg, 

Pennsylvania 17101, Telephone: (717) 

782– 4036, E-mail: grieger@osmre.gov. 

Thomas Callaghan, P.G., Director, 

Bureau of Mining and Reclamation, 

Pennsylvania Department of 

Environmental Protection, Rachel 

Carson State Office Building, P.O. Box 

8461, Harrisburg, Pennsylvania 

17105–8461, Telephone: (717) 787– 

5015, E-mail: tcallaghan@state.pa.us. 

FOR FURTHER INFORMATION CONTACT: 

George Rieger, Telephone: (717) 782– 

4036. E-mail: grieger@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Pennsylvania Program 

II. Description of the Amendment 

III. Public Comment Procedures 

IV. 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 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 this Act * * * and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to this Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the 

Pennsylvania program on July 30, 1982. 

You can find background information 

on the Pennsylvania program, including 

the Secretary’s findings, the disposition 

of comments, and conditions of 

approval of the Pennsylvania program 

in the July 30, 1982, Federal Register 

(47 FR 33050). You can also find later 

actions concerning the Pennsylvania 

program and program amendments at 30 

CFR 938.11, 938.12, 938.13, 938.15, and 

938.16. 

II. Description of the Amendment 

Original Submission: By letter dated 

March 17, 2010, Administrative Record 

Number 888.00, Pennsylvania sent us an 

amendment to its program, under 

SMCRA (30 U.S.C. 1201 et seq.). 

Pennsylvania’s submittal, consisting of 

proposed regulatory/rule changes, was 

intended to address fourteen required 

amendments found at 30 CFR 938.16(rr), 

(tt), (uu), (vv), (ww), (xx), (zz), (aaa), 

(ccc), (iii), (jjj), (nnn), (ppp), and (ttt). It 

was also intended to address a partial 

disapproval of a 1998 submission that 

included regulations about remining 

financial guarantees. The disapproval is 

codified at 30 CFR 938.12(c)(3). 

First Subsequent Submission: By 

letter dated September 14, 2010, 

Administrative Record Number 844.23, 

Pennsylvania sent us an amendment to 

its program under SMCRA that included 

an ‘‘effective as’’ demonstration for: 

(1) eight of the required amendments 

mentioned above—30 CFR 938.16(rr) 

(tt), (uu), (vv), (ww), (xx), (zz), and (aaa); 

and (2) one required amendment not 

previously addressed (yy). It also 

included revised guidance documents 

related to compliance/enforcement 

procedures, alternate enforcement, and 

coal and industrial mineral mining 

inspections. Reference documents were 

also included but are not part of this 

amendment. We are now incorporating 

this submission into this amendment. 

Second Subsequent Submission: By 

letter dated November 16, 2010, 

Administrative Record No. 888.07, 

Pennsylvania sent us an amendment to 

its program under SMCRA to include 

the final-form rulemaking language that 

addressed the fourteen amendments 

mentioned above. 

The full text of the program 

amendment is available for you to read 

at the locations listed above under 

ADDRESSES. A summary of the 

submission follows. 

Required Amendments at 30 CFR 

938.16: The 15 required amendments at 

30 CFR 938.16 require Pennsylvania to 

submit proposed amendments to: 

(rr) Section 86.36(c) to require permit 

denial for unabated violations of any 

Federal or State program under SMCRA, 

without the three-year limitation. 

(tt) Section 86.37(a)(10) to require that 

all violations of the Federal SMCRA and 

all programs approved under SMCRA be 

considered in determining whether 

there is a demonstrated pattern of 

willful violations. 

(uu) Section 86.37(a) to require that 

the criteria upon which the regulatory 

authority bases its decision to approve 

or deny a permit application are based 

on all information available to the 

regulatory authority. 

(vv) Section 86.37(a) to include 

language that would prohibit permit 

approval if the applicant or anyone 

linked to the applicant through the 

definition of ‘‘owned or controlled’’ or 

‘‘owns or controls’’ has forfeited a bond 

and the violation upon which the 

forfeiture was based remains unabated. 

(ww) Sections 86.37(a)(9) and (a)(16) 

to require denial of a permit if it finds 

that those linked to the applicant 

through the definition of ‘‘owned or 

controlled’’ or ‘‘owns or controls’’ are 

delinquent in payment of abandoned 

mine reclamation fees or delinquent in 

the payment of State and Federal final 

civil penalty assessments. 

(xx) Section 86.37(c) to require that 

the regulatory authority’s 

reconsideration of its decision to 

approve the permit include a review of 

information, updated for the period 

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Federal Register / Vol. 76, No. 64 / Monday, April 4, 2011 / Proposed Rules 18469 

from permit approval to permit 

issuance, pertaining to the payment of 

abandoned mine reclamation fees and 

civil penalty fees and the status of 

unabated violations upon which a bond 

forfeiture was based. 

(yy) Section 86.43 to require the 

regulatory authority to review the 

circumstances under which a permit 

was issued whenever it has reason to 

believe that the permit may have been 

improvidently issued. 

(zz) Section 86.62(b)(2)(ii) to correct 

the cross-reference to section 86.63 with 

a reference to section 86.212(c). 

(aaa) Sections 86.62(c) and 87.14(3) to 

include the requirement that the 

application include the address for each 

permit held by a related entity or 

company, and identification of the 

regulatory authority for such permit. 

(ccc) Section 86.133(f) to require that 

exploration on areas designated as 

unsuitable for mining shall be subject to 

permitting requirements no less 

effective than the Federal regulations at 

30 CFR 772.12. 

(iii) Section 87.112(c) and 89.111(c) to 

require a seismic safety factor of at least 

1.2 for all impoundments that meet the 

criteria of 30 CFR 77.216(a) or are 

located where failure could cause loss of 

life or serious property damage. 

(jjj) Section 90.112(c)(2) to require 

that all impounding structures that meet 

the criteria of 30 CFR 77.216(a) and are 

either constructed of coal mine waste or 

intended to impound coal mine waste 

have sufficient spillway capacity and/or 

storage capacity to safely pass or control 

the runoff from the 6-hour PMP or 

greater precipitation event. 

(nnn) Section 86.159(1)(2) to require 

two officer signatures for each corporate 

indemnitor, an affidavit from the 

corporation(s) certifying that entering 

into the indemnity agreement is valid 

under all applicable Federal and State 

laws, and documents that evidence the 

authority of the signatories to bind the 

corporation and an authorization by the 

parent corporation to enter into the 

indemnity agreement. 

(ppp) Section 86.5(m), or otherwise 

amend its program, to provide for 

notification of the operator and any 

intervenors of a decision not to revoke 

an exemption. 

(ttt) Sections 88.321 and 90.133, or 

otherwise amend its program to require 

that no noncoal waste be deposited in 

a coal refuse pile or impounding 

structure. 

Pennsylvania Response to Required 

Amendments at 30 CFR 938.16: 

Pennsylvania submitted revised 

regulatory provisions for approval and 

an ‘‘effective as’’ demonstration to 

address the required amendments. The 

State also submitted some proposed 

regulatory changes that are not intended 

to address any of the required 

amendments. 

Regulatory Changes: The provisions 

of the Pennsylvania rules that 

Pennsylvania proposes to revise and/or 

add are found at 25 Pennsylvania Code. 

The following is a summary of the 

regulatory changes being proposed to 

address program deficiencies noted at 

30 CFR 938.16. 

Section 86.1, Definitions 

The Noncoal Surface Mining and 

Reclamation Act (NSMRA) is being 

added to the list for the definition of 

Acts. When Chapter 86 was 

promulgated in 1983, noncoal mining 

was regulated under the authority of the 

Pennsylvania Surface Mining 

Conservation and Reclamation Act 

(PASMCRA). In 1984, the NSMRA was 

enacted, superseding the role of 

PASMCRA for noncoal mining. In order 

to comply with Federal program 

requirements (and to have an effective 

regulatory program) relating to 

incidental extraction of coal under 

noncoal mining permits, Pennsylvania 

states that it is necessary to include 

NSMRA in the applicable Acts. This 

amendment is intended to address the 

requirement set forth at 30 CFR 

938.16(tt). 

Pennsylvania also states that 

PASMCRA Section 1396.3a(d) includes 

a reference to Federal SMCRA. This 

meets the requirement and makes the 

Pennsylvania program no less effective 

than the Federal requirements. The text 

of Section 1396.3a(d) is available online 

at Regulations.gov. 

Pennsylvania states that the standard 

in Section 86.37 (a)(10) is the ‘‘lack of 

ability or intention to comply with the 

acts * * *’’ This inability or 

unwillingness to comply would be 

shown through violations of Federal 

SMCRA or in other states. If the 

language was that ‘‘the applicant did not 

comply with the acts,’’ then that would 

be more limiting than the existing 

language. The existing language allows 

Pennsylvania to include any violations 

in determining the ‘‘lack of ability or 

intention to comply with the acts * * *’’ 

In addition, the regulation submitted as 

program amendment PA–156–FOR in 

March 2010 includes a revision adding 

the State NSMRA to the definition of 

‘‘acts’’ in Section 86.1. 

The definition of ‘‘owned or 

controlled’’ and ‘‘owns or controls’’ is 

being corrected to include the current 

reference to the Federal regulations 

relating to definitions. This addresses 

Federal regulation revisions that 

resulted in the definition being placed 

in a different section of the State 

program. 

Section 86.5, Extraction of Coal 

Incidental to Noncoal Surface Mining 

Section 86.5(m) is amended to add the 

requirement for the Department to 

notify interested parties in the case that 

the Department decides not to revoke an 

exemption from the coal permitting 

requirements. This amendment is 

intended to address the requirement set 

forth at 30 CFR 938.16(ppp). 

Section 86.36, Review of Permit 

Applications 

Section 86.36 is amended to delete 

the three-year time limitation for the 

review of an outstanding Federal 

violation. This amendment is intended 

to address the requirement set forth at 

30 CFR 938.16(rr). 

Section 86.37, Criteria for Permit 

Approval or Denial 

Section 86.37(a)(8) is amended to 

include a reference to the Federal 

definition of a violation. This 

amendment was required by the Federal 

requirement set forth at 30 CFR 

938.16(ww). This amendment is also 

intended to address the deficiencies set 

forth at 30 CFR 938.16(uu), (vv), and 

(xx). 

Section 86.62, Identification of Interests 

Section 86.62(b)(2)(ii) is being 

amended to correct the reference to the 

Federal minimum enforcement action. 

This amendment is intended to address 

the requirement set forth at 30 CFR 

938.16(zz). 

Section 86.62(c) is being amended to 

include the permittee name and address 

as required information relating to 

permits for related entities and to clarify 

that issued permits must be reported as 

part of an application. This amendment 

is intended to address the requirement 

set forth at 30 CFR 938.16(aaa). 

Section 86.103(g), Procedure; Section 

86.129, Coal Exploration on Areas 

Designated as Unsuitable for Surface 

Mining Operations; and Section 86.133, 

General Requirements 

Section 86.103(g) is being added to 

require that the procedures for 

processing an assertion of Valid Existing 

Rights (VER) follow the Federal 

requirements by incorporating the 

Federal procedural requirements by 

reference. 

Section 86.129(b) is being amended to 

provide specific procedures and 

requirements for permit applications for 

exploration activities on lands 

designated as unsuitable for mining. 

The detailed requirements mirror the 

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18470 Federal Register / Vol. 76, No. 64 / Monday, April 4, 2011 / Proposed Rules 

Federal procedures and standards for 

approval. This amendment also results 

in the renumbering of current 

subsections 86.129(b)(1) and 

86.129(b)(2). 

Section 86.133(f) is being amended to 

clarify that a permit is required for 

exploration activities on lands 

designated as unsuitable for mining. 

The amendments to 86.129(b) and 

86.133(f) are intended to address the 

requirements set forth at 30 CFR 

938.16(ccc). 

Section 86.159, Self-Bonding 

Section 86.159(l)(1) is amended to 

incorporate the language in the Federal 

regulations regarding the 

indemnification of self-bonds in the 

case of a corporate applicant that has a 

parent company. This amendment is 

intended to address the requirement set 

forth at 30 CFR 938.16(nnn). 

Section 87.112, Hydrologic Balance: 

Dams, Ponds, Embankments and 

Impoundments—Design, Construction 

and Maintenance and Section 89.111, 

Large impoundments 

Section 87.112(c) is amended to add 

a requirement to protect miners or the 

public. Section 87.112(c)(1) is amended 

to add the required seismic safety factor. 

Section 89.111(c) is amended to add 

a requirement to protect miners or the 

public. Section 89.11(c)(1) is amended 

to add the required seismic safety factor. 

These amendments are intended to 

address the requirement set forth at 30 

CFR 938.16(iii). 

Section 88.321, Disposal of Noncoal 

Wastes and Section 90.133, Disposal of 

Noncoal Wastes 

Section 88.321 is amended to include 

all noncoal wastes and to apply the 

prohibition to impoundments. 

Section 90.133 is amended to include 

all noncoal wastes and to apply the 

prohibition to impoundments. 

These amendments are intended to 

address the requirements set forth at 30 

CFR 938.16(ttt). 

Section 90.112, Hydrologic Balance: 

Dams, Ponds, Embankments and 

Impoundments—Design, Construction 

and Maintenance 

Section 90.112(c) is amended to add 

a requirement to protect miners or the 

public. Section 90.112(c)(2) is amended 

to match the language in the Federal 

regulations regarding spillway capacity 

for large impoundments at coal refuse 

disposal sites. These amendments are 

intended to address the requirements set 

forth at 30 CFR 938.16(jjj). 

Required Amendment 30 CFR 

938.16(yy): ‘‘Effective As’’ Demonstration 

There are no proposed regulation 

changes being made to sections 86.43, 

Improvidently Issued Permits and 86.44, 

Rescission of Improvidently Issued 

Permits. Instead, Pennsylvania submits 

that its existing regulations are 

sufficient to render its program no less 

effective than the Federal regulations. 

The submission provides 

Pennsylvania’s reasoning for this 

assertion as follows: 

The difference between the Federal 

requirement and Pennsylvania’s regulations 

is related to the phrase ‘reason to believe’ in 

the CFR and ‘found’ in Pennsylvania’s 

regulations. The Federal regulation does not 

describe how one would have a ‘reason to 

believe.’ 

An example may help illustrate how this 

regulation is applied in Pennsylvania. In a 

case where a permit has been issued based 

on the presumption that a violation is in the 

process of being corrected, Pennsylvania uses 

eFACTS to track the status of the violation. 

In this example, the permit is conditionally 

issued, based upon continued compliance. 

The eFACTS database has functionality 

where the permit record is linked to the 

enforcement record for the violation that is 

in satisfactory progress. If the status of the 

enforcement record is changed indicating 

noncompliance, then the permit is 

automatically flagged for rescission. Another 

example is a case where a prohibited party 

may be participating in the mining activities. 

If Pennsylvania finds (usually through a site 

inspection) that a forfeited operator is in a 

position of ownership or control at a mining 

operation, an investigation is initiated. 

Pennsylvania has relied on the investigative 

expertise of the OSM Applicant/Violator 

System (AVS) investigative staff in many of 

these cases. If the investigation demonstrates 

a link, then the permit rescission will ensue. 

While having a ‘reason to believe’ would 

most likely occur sooner in the process than 

having a ‘finding’ and there is an implication 

of something more formal with a finding, 

both regulations require the regulatory 

authority to take an affirmative action to 

pursue rescission if it is necessary. 

Pennsylvania requests that this 

required amendment be removed based 

on this assertion. 

Remining Financial Guarantees—OSM 

Partial Disapproval of 1998 Regulatory 

Amendment found at 30 CFR 

938.12(c)(3) 

We did not approve a provision of a 

proposed program amendment that 

Pennsylvania submitted on December 

18, 1998, regarding 25 Pa Code 

86.281(e). The last sentence, which 

stated, ‘‘If the actual cost of reclamation 

by the Department exceeds the amount 

reserved, additional funds from the 

Remining Financial Assurance Fund 

will be used to complete reclamation’’ 

was not approved. 

Pennsylvania’s Response to the OSM 

Disapproval at 30 CFR 938.12(c)(3) 

In its submission of March 17, 2010, 

Pennsylvania indicates that the 

following regulatory changes are being 

made to the remining financial 

guarantee program to address the 

portion of 25 Pa Code 86.281(e) that was 

not approved as documented at 30 CFR 

938.12(c)(3). 

Section 86.165, Failure To Maintain 

Proper Bond 

Section 86.165(a) is amended to add 

that an operator’s obligation to maintain 

a proper bond includes the payments 

required under the Remining Financial 

Guarantee program. This amendment 

will allow the enforcement of the 

payment requirement using consistent 

procedures. 

Section 86.281, Financial Guarantees To 

Insure Reclamation—General 

Section 86.281(c) is amended to 

provide that the Department will 

designate a specified amount in the 

financial guarantees special account as 

financial assurance for the reclamation 

obligation of a permit with an approved 

remining area, rather than reserving a 

portion of those funds. This change is 

necessary in light of the conversion to 

a conventional bonding program. Under 

conventional bonding, the total 

reclamation cost is accounted for when 

determining the bond amount, thus 

enabling the Department to calculate 

more precisely the amount of funds that 

may need to be used to reclaim an 

approved remining area covered by a 

remining financial guarantee. 

Section 86.281(e) is amended in 

conjunction with the revision in Section 

86.281(c) and to clarify that all of the 

bonds forfeited (including the Remining 

Financial Guarantee) on a permit are to 

be used for reclamation of the mine site 

(including the remining area). It also is 

amended to allow, rather than require, 

the use of additional funds from the 

Remining Financial Assurance Fund if 

they are needed to complete the 

reclamation of the mine site. This 

change is based primarily on the 

concept that under conventional 

bonding, the bond amount posted is the 

amount required to complete the 

reclamation. In addition, it provides the 

Department with flexibility to use 

money from the Remining Financial 

Assurance Fund to pay for the necessary 

reclamation. 

Section 86.282, Participation 

Requirements 

Section 86.282(a)(2) is being revised 

to delete the option of using the ability 

to obtain a letter of credit as a 

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demonstration of financial 

responsibility. Experience in 

implementing the Remining Financial 

Guarantee program has shown that the 

ability to obtain a letter of credit from 

a bank is not a good test of financial 

responsibility. 

Section 86.283, Procedures 

Section 86.283(a)(1) is amended to 

change the way the amount of the 

payment is determined as a result of the 

change to conventional bonding. The 

deleted language is based on the peracre bond rate system. The proposed 

wording is based on the amount of the 

Remining Financial Guarantee. 

Section 86.283(d) is amended to 

clarify how financial guarantee funds 

are allocated. 

Section 86.283(e) is amended to 

delete language relating to the process of 

‘‘bond rollover’’ that was allowed under 

the Alternative Bonding System (ABS). 

The concept of ‘‘bond rollover’’ is not 

pertinent to conventional bonding. 

Section 86.283(f) is being added to 

reduce the potential risk of insolvency 

of the Remining Financial Assurance 

Fund by requiring the replacement of a 

Remining Financial Guarantee in the 

event a pollutional discharge occurs at 

a mine site bonded with a Remining 

Financial Guarantee. 

Section 86.284, Forfeiture 

Sections 86.284(a) and (c) are 

amended to be consistent with the 

changes made in Sections 86.281(c) 

and (e). 

Guidance Documents: Pennsylvania is 

seeking to amend its program to include 

three program directives that will 

replace a policy statement initially 

amended into the Pennsylvania program 

on March 20, 1984, and subsequently 

revised by program amendments 

approved on May 15, 1984, July 3, 1984, 

September 8, 1986, and October 27, 

1988. The original policy statement 

described Pennsylvania’s policies 

regarding Departmental inspections 

conducted at permitted coal mine 

operations; citing and enforcing 

violations found at the permitted 

operations; and alternative enforcement 

actions available to the Department in 

the event violations are not abated in a 

timely manner. These topics have now 

been separated and addressed in three 

Directives identified as 562–4100–301 

Compliance/Enforcement Procedures, 

562–4100–307 Alternative Enforcement, 

and 562–3000–102 Coal and Industrial 

Mineral Mining Inspections. With 

respect to 562–3000–102, regarding the 

type and frequency of inspections at 

coal mine permit sites, only Sections I 

and II.A, II.B, and II.F are being 

submitted for inclusion in 

Pennsylvania’s approved coal mining 

regulatory program. There are no major 

changes in Departmental policy 

regarding these three new Directives. 

The policies are being reorganized, 

updated, and placed into the 

Departmental Directives format. 

Supporting Documentation: In 

addition to the documents mentioned 

above, the State has submitted the 

following documents for reference 

purposes only: Guidance Documents 

562–3000–802 Coal Mining Applicant 

Violator System (AVS) Compliance 

Manual, 562–2000–703 Changes to 

Licenses, Bonds and Permits, 563– 

2000–001 Government Financed 

Construction Contracts, and 562–3000– 

110 Applicant Violator System (AVS) 

Inspections; 5600–PM–MR0025, 

Application Form—Mining License, 

Contract Operator Approval and 

Ownership and Control Registration; 

Sample Permit suspension letter; and, 

‘‘As Effective As’’ demonstration for the 

Inspection Program. 

III. Public Comment Procedures 

Under the provisions of 30 CFR 

732.17(h), we are seeking your 

comments on whether the submission 

satisfies the applicable program 

approval criteria of 30 CFR 732.15. If we 

approve the amendment, it will become 

part of the Pennsylvania program. 

Electronic or Written Comments 

If you submit written comments, they 

should be specific, confined to issues 

pertinent to the proposed regulations, 

and explain the reason for any 

recommended change(s). We appreciate 

any and all comments, but those most 

useful and likely to influence decisions 

on the final regulations will be those 

that either involve personal experience 

or include citations to and analyses of 

SMCRA, its legislative history, its 

implementing regulations, case law, 

other pertinent Tribal or Federal laws or 

regulations, technical literature, or other 

relevant publications. We cannot ensure 

that comments received after the close 

of the comment period (see DATES) or 

sent to an address other than those 

listed above (see ADDRESSES) will be 

included in the docket for this 

rulemaking and considered. 

Public Availability of Comments 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you may ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. We will not consider anonymous 

comments. 

Public Hearing 

If you wish to speak at the public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT by 

4 p.m., local time April 19, 2011. If you 

are disabled and need reasonable 

accommodations to attend a public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT. We 

will arrange the location and time of the 

hearing with those persons requesting 

the hearing. If no one requests an 

opportunity to speak, we will not hold 

the hearing. 

To assist the transcriber and ensure an 

accurate record, we request, if possible, 

that each person who speaks at a public 

hearing provide us with a written copy 

of his or her comments. The public 

hearing will continue on the specified 

date until everyone scheduled to speak 

has been given an opportunity to be 

heard. If you are in the audience and 

have not been scheduled to speak and 

wish to do so, you will be allowed to 

speak after those who have been 

scheduled. We will end the hearing after 

everyone scheduled to speak and others 

present in the audience who wish to 

speak, have been heard. 

Public Meeting 

If there is only limited interest in 

participating in a public hearing, we 

may hold a public meeting rather than 

a public hearing. If you wish to meet 

with us to discuss the submission, 

please request a meeting by contacting 

the person listed under FOR FURTHER

INFORMATION CONTACT. All such meetings 

are open to the public and, if possible, 

we will post notices of meetings at the 

locations listed under ADDRESSES. We 

will make a written summary of each 

meeting a part of the administrative 

record. 

IV. Procedural Determinations 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

(OMB) under Executive Order 12866. 

Other Laws and Executive Orders 

Affecting Rulemaking 

When a State submits a program 

amendment to OSM for review, our 

regulations at 30 CFR 732.17(h) require 

us to publish a notice in the Federal 

Register indicating receipt of the 

proposed amendment, its text or a 

summary of its terms, and an 

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18472 Federal Register / Vol. 76, No. 64 / Monday, April 4, 2011 / Proposed Rules 

opportunity for public comment. We 

conclude our review of the proposed 

amendment after the close of the public 

comment period and determine whether 

the amendment should be approved, 

approved in part, or not approved. At 

that time, we will also make the 

determinations and certifications 

required by the various laws and 

executive orders governing the 

rulemaking process and include them in 

the final rule. 

List of Subjects in 30 CFR Part 938 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: February 18, 2011. 

Thomas D. Shope, 

Regional Director, Appalachian Region. 

[FR Doc. 2011–7907 Filed 4–1–11; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 424 

[CMS–6036–P2] 

RIN 0938–AQ57 

Medicare Program; Revisions to the 

Durable Medical Equipment, 

Prosthetics, Orthotics, and Supplies 

(DMEPOS) Suppliers Safeguards 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

remove the definition of and modify 

requirements regarding ‘‘direct 

solicitation;’’ allow DMEPOS suppliers, 

including DMEPOS competitive bidding 

program contract suppliers, to contract 

with licensed agents to provide 

DMEPOS supplies unless prohibited by 

State law; remove the requirement for 

compliance with local zoning laws; and 

modify certain State licensing 

requirement exceptions. 

DATES: To be assured consideration, 

comments must be received at one of 

the addresses provided below, no later 

than 5 p.m. on June 3, 2011. 

ADDRESSES: In commenting, please refer 

to file code CMS–6036–P2. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

You may submit comments in one of 

four ways (please choose only one of the 

ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the ‘‘Submit a comment’’ instructions. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–6036–P2, P.O. Box 8013, 

Baltimore, MD 21244–8013. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address ONLY: Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–6036–P2, 

Mail Stop C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

4. By hand or courier. If you prefer, 

you may deliver (by hand or courier) 

your written comments before the close 

of the comment period to either of the 

following addresses: 

a. For delivery in Washington, DC— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Room 445–G, Hubert 

H. Humphrey Building, 200 

Independence Avenue, SW., 

Washington, DC 20201. 

(Because access to the interior of the 

Hubert H. Humphrey Building is not 

readily available to persons without 

Federal government identification, 

commenters are encouraged to leave 

their comments in the CMS drop slots 

located in the main lobby of the 

building. A stamp-in clock is available 

for persons wishing to retain a proof of 

filing by stamping in and retaining an 

extra copy of the comments being filed.) 

b. For delivery in Baltimore, MD— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

If you intend to deliver your 

comments to the Baltimore address, 

please call telephone number (410) 786– 

9994 in advance to schedule your 

arrival with one of our staff members. 

Comments mailed to the addresses 

indicated as appropriate for hand or 

courier delivery may be delayed and 

received after the comment period. 

For information on viewing public 

comments, see the beginning of the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: 

Katie Mucklow Lehman, (410) 786– 

0537. 

SUPPLEMENTARY INFORMATION: 

Inspection of Public Comments: All 

comments received before the close of 

the comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 

comment period on the following Web 

site as soon as possible after they have 

been received: http:// 

www.regulations.gov. Follow the search 

instructions on that Web site to view 

public comments. 

Comments received timely will also 

be available for public inspection as 

they are received, generally beginning 

approximately 3 weeks after publication 

of a document, at the headquarters of 

the Centers for Medicare & Medicaid 

Services, 7500 Security Boulevard, 

Baltimore, Maryland 21244, Monday 

through Friday of each week from 

8:30 a.m. to 4 p.m. To schedule an 

appointment to view public comments, 

phone 1–800–743–3951. 

I. Background 

A. General Overview 

Medicare services are furnished by 

two types of entities, providers, and 

suppliers. At § 400.202, the term 

‘‘provider’’ is defined as a hospital, a 

critical access hospital (CAH), a skilled 

nursing facility (SNF), a comprehensive 

outpatient rehabilitation facility (CORF), 

a home health agency (HHA), or a 

hospice that has in effect an agreement 

to participate in Medicare, or a clinic, a 

rehabilitation agency, or a public health 

agency that has in effect a similar 

agreement but only to furnish outpatient 

physical therapy or speech pathology 

services, or a community mental health 

center that has in effect a similar 

agreement but only to furnish partial 

hospitalization services. The term 

‘‘provider’’ is also defined in sections 

1861(u) and 1866(e) of the Social 

Security Act (the Act). 

For purposes of the durable medical 

equipment, prosthetics, orthotics, and 

supplies (DMEPOS) supplier standards, 

the term ‘‘supplier’’ is defined in 

§ 424.57(a) as an entity or individual, 

including a physician or Part A 

provider, that sells or rents Part B 

covered DMEPOS items to Medicare 

beneficiaries that meet the DMEPOS 

supplier standards. A supplier that 

furnishes DMEPOS is one category of 

supplier. Other supplier categories may 

include, for example, physicians, nurse 

practitioners, and physical therapists. If 

a supplier, such as a physician or 

physical therapist, also furnishes 

DMEPOS to a patient, then the supplier 

is also considered to be a DMEPOS 

supplier. The term ‘‘DMEPOS’’ 

encompasses the types of items 

included in the definition of medical 

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