As a result of information received during the public comment period on the proposed rulemaking, the Department prepared draft changes for review by the Mining and Reclamation Advisory BoardÛ(MRAB). The proposed regulatory changes were reviewed by the MRAB at its meeting of OctoberÛ26, 1995. Comments received on the proposed rulemaking focused on three major issues: 1. The statutory authority for the use and definition of the term "surface mining activities." The Pennsylvania Coal AssociationÛ(PCA) and the Independent Regulatory Review CommissionÛ(IRRC) questioned the statutory and legal authority for the use and definition of the term "surface mining activities," contained in SectionÛ86.101 of SubchapterÛD, since the statute authorizing the designation of areas as unsuitable for mining uses the term "surface mining operations." An informal review of the proposed amendment by the federal Office of Surface Mining Reclamation and EnforcementÛ(OSMRE) indicated that the term was not the same as the federal term "surface coal mining operation". The Department's Regulatory Counsel has thoroughly researched this issue in both federal and state statutes and federal regulations. A complete summary of those findings will appear in the preamble and in the comment and response documents of the final rulemaking. Based upon that legal analysis, the Department is proposing to amend SectionÛ86.101 by replacing the term "surface mining activities" with the term "surface mining operations" while retaining the presently used definition in its entirety. In addition, all references to "surface mining activities" contained in the proposed rulemaking are being changed to "surface mining operations". We believe these changes clarify the definition of surface mining covered by the unsuitable for mining designation process and establish the statutory basis for the inclusion of the term "surface mining operations" used in the state primacy program for areas unsuitable for mining. 2. Concerns that the discretionary criteria will not be as effective as federal regulations. Numerous comments were received concerning the proposed amendments to the discretionary criteria for designation of areas as unsuitable for mining in SectionÛ86.122(b). The Pennsylvania Historical and Museum CommissionÛ(PHMC) objects to the proposed changes to 86.122(b)(1) andÛ(2) because they believe the changes narrow and limit the protection of historic resources available under the existing program. The PHMC believes that the changes would be inconsistent with the intent of federal and Commonwealth statutes. The Pennsylvania Coal AssociationÛ(PCA) also opposes the proposed discretionary criteria amendments. PCA believes the proposed changes broaden and expand the criteria and conditions under which the Department would consider designation of areas as unsuitable for mining. Comments were received from the Independent Regulatory Review CommissionÛ(IRRC) which found the proposed rulemaking to be in the public interest and the Commission offered several suggestions to clarify the structure of the amendment. Because of the comments received in opposition to the proposed amendment, the Department requested an informal review of this amendment from the OSMRE. We have been informed by OSMRE that the proposed amendments to the discretionary criteria would make these regulations less effective than the federal regulations. OSMRE's interpretation of the proposed changes are that the regulations would limit the Department's discretion to designate areas as unsuitable for mining by limiting the criteria to natural resources, requiring government or other ownership dedicated to preservation of resources and eliminating protections based on replacement or mitigation. In consideration of these comments, the Department has deleted all proposed changes to the discretionary criteria in SectionÛ86.122(b). 3. The statutory authority for the definition of surface mining activities as it applies to the surface effects of underground mining. SPCA questioned the legality and statutory authority of the definition as it applies to the surface effects of underground mining. As a part of evaluating PCA's concerns, we have requested a clarification from OSMRE relative to 1)ÛDoes federal SMCRA address the surface effects of underground mining in the context of the areas unsuitable for mining program, and if it does; 2)ÛWhat types of "surface effects" should be considered. Resolution of this issue and a determination of whether any additional rulemaking will be necessary will be determined after the response from OSMRE has been received and fully evaluated.