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###### Department of the Interior

###### Office of Surface Mining Reclamation and Enforcement 

          - 30 CFR Part 938 
          - [PA-122-FOR] 

# AGENCY:

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

# ACTION:

Proposed rule; reopening of public comment period. 

# SUMMARY:

                        OSM is reopening the public comment period on Pennsylvania's responses to comments we made in regard to a proposed amendment to the Pennsylvania permanent regulatory program under the Surface Mining Control and Reclamation Act of 1997 (SMCRA). The amendment, submitted on July 29, 1998, (Administrative Record No. PA-841.07), proposed changes to the Pennsylvania program with regard to the mine subsidence control, subsidence damage repair or replacement, and water supply replacement provisions of SMCRA. The amendment submission included changes to the Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) made through Act 54 and changes to regulations at 25 PA Code Chapter 89. After reviewing the amendment, we sent two letters to Pennsylvania requesting clarification of numerous issues. The letters were sent on June 21, 1999, (Administrative record number PA 841.32) and June 23, 2000, (Administrative record number PA 841.40). Pennsylvania responded to the first letter on June 1, 2000, (Administrative record number PA                               ( print page 76955)                            841.39) and to the second on July 14, 2000, (Administrative record number PA 841.41). We are reopening the comment period to allow public input into Pennsylvania's responses to the two letters.                     

# DATES:

Written comments must be received on or before 4:00 p.m. (local time), on December 26, 2000. 

# ADDRESSES:

Mail, hand-deliver or e-mail your written comments to Mr. Robert J. Biggi, Director, Harrisburg Field Office, at the address listed below. 

You may review copies of the Pennsylvania program, the proposed amendment, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the proposed amendment by contacting OSM's Harrisburg Field Office.

                        Office of Surface Mining Reclamation and Enforcement, Harrisburg Field Office, Third Floor, Suite 3C, Harrisburg Transportation Center, 415 Market Street, Harrisburg, Pennsylvania 17101, Telephone: (717) 782-4036, e-mail:                         *bbiggi@osmre.gov*

Pennsylvania Department of Environmental Protection, Bureau of Mining and Reclamation, Rachel Carson State Office Building, P.O. Box 8461, Harrisburg, Pennsylvania 17105-8461, Telephone: (717) 787-5103 

# FOR FURTHER INFORMATION CONTACT:

Robert J. Biggi, Director, Harrisburg Field Office, Telephone: (717) 782-4036. 

## I. Background on the Pennsylvania Program 

                        On July 31, 1982, the Secretary of the Interior conditionally approved the Pennsylvania program. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and the conditions of the approval in the July 31, 1982,                         **Federal Register**                         (47 FR 33050). Subsequent actions concerning the Pennsylvania program and previous amendments are codified at 30 CFR 938.11, 938.12, 938.15 and 938.16.                     

## II. Description of the Proposed Amendment 

By letter dated July 29, 1998 (Administrative Record Number PA 841.07), the Pennsylvania Department of Environmental Resources (PADEP) submitted an amendment to its approved permanent regulatory program pursuant to the Federal regulations at 30 CFR 732.17(b). 

                        The proposed rulemaking was published in the August 25, 1998,                         **Federal Register**                         (63 FR 45199). The first public comment period closed on September 24, 1998. In response to requests from several people, the comment period was reopened on September 25, 1998, (63 FR 51324).                     

This second comment period closed on October 19, 1998. A public hearing was held on October 13, 1998, at Washington, Pennsylvania (Administrative record numbers PA 841.21, 841.22, and 841.31). After reviewing the public comments and the information received at the public hearing and conducting our own review of the amendment, we sent Pennsylvania the two letters described above to request clarification of numerous issues. The sections of the BMSLCA that we asked Pennsylvania for additional information on are: 5.1(a)(1)—(3), 5.1(b), 5.2(a)(1) and (2), 5.2(a)(2), 5.2(b)(2), 5.2(d), 5.2(e)(1)—(3), 5.2(g), 5.2(g)(1), 5.2(h), 5.2(i), 5.2(k), 5.3(a), 5.3(c), 5.4(a)(1), 5.4(a)(2), 5.4(a)(3), 5.4(c), 5.5(a), 5.5(b), 5.5(c), 5.5(e), 5.5(g), 5.6(a), 5.6(c), and 9.1(b). 

The sections of Pennsylvania's regulations at 25 PA Code Chapter 89 that we asked Pennsylvania for additional information on are: § 89.5, definitions of the terms, “de minimis cost increase,” “permanently affixed appurtenant structures,” and “public buildings and facilities,” § 89.35, § 89.67(b), § 89.141(d), § 89.141(d)(2), § 89.141(d)(3), § 89.141(d)(6), § 89.141(d)(9), § 89.142a(a)(3), § 89.142a(b)(1), § 89.142a(b)(2), § 89.142a(c)(2), § 89.142a(c)(3), § 89.142a(e), § 89.142a(f)(1), § 89.142a(f)(2), § 89.142a(g)(2)—(4), § 89.143a(b), § 89.145a(a)(1), § 89.145a(a)(3), § 89.145a(b), § 89.145a(d), § 89.145a(e), § 89.145a(e)(2), § 89.145a(f)(1), § 89.145a(f)(3), § 89.146a(a), § 89.146a(b)(4), § 89.152(b), § 89.154(a), § 89.154(a)(5) and (6). 

The full text of our letters and Pennsylvania's responses can be obtained at the Harrisburg Field Office at the address listed above. 

## III. Public Comment Procedures 

In accordance with the provisions of 30 CFR 732.17(h), OSM is seeking comments only on Pennsylvania's responses to our two letters. 

### Written Comments 

                        If you submit written or electronic comments on the proposed rule during the 15-day comment period, they should be specific, should be confined to issues pertinent to the notice, and should explain the reason for your recommendation(s). We may not be able to consider or include in the Administrative Record comments delivered to an address other than the one listed above (see                         **ADDRESSES**                        ).                     

### Electronic Comments 

Please submit Internet comments as an ASCII, WordPerfect, or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: SPATS NO. PA-122-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Harrisburg Field Office at (717) 782-4036. 

### Availability of Comments 

                        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours at the OSM Administrative Record Room (see                         **ADDRESSES**                        ). Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.                     

## Procedural Determinations 

### 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 12630—Takings 

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart federal regulation. 

### 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                               ( print page 76956)                            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, and section 503(a)(7) requires that state programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.                     

### 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 allowed 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 since each such 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 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. 

### 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 the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507*et seq.*).                     

### Regulatory Flexibility Act 

                        The Department of the Interior has determined 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 submittal which is the subject of this rule is based upon 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 regulation.                     

### 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. 

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: November 30, 2000.

George J. Rieger,

Acting Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 00-31324 Filed 12-7-00; 8:45 am] 

BILLING CODE 4310-05-P