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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] 

# AGENCY:

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

# ACTION:

Final Rule; rescission of a modified required amendment.

# SUMMARY:

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

# DATES:

*Effective Date:*                         October 15, 2008.                     

# FOR FURTHER INFORMATION CONTACT:

                        George Rieger, Chief, Pittsburgh Field                               ( print 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                           ( print 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.

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

      ( print page 60947)    

# 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 

2. In § 938.16, remove paragraph (h). 

[FR Doc. E8-24477 Filed 10-14-08; 8:45 am] 

BILLING CODE 4310-05-P