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PA Bulletin, Doc. No. 08-1966


Title 34--LABOR


[ 34 PA. CODE CH. 33 ]

Mines and Other Excavations

[38 Pa.B. 5960]
[Saturday, November 1, 2008]

   In accordance with sections 2(f) and 12 of the act of May 18, 1937 (P. L. 654, No. 174) (43 P. S. §§ 25-2(f) and 25-12), the Department of Labor and Industry (Department) rescinds Chapter 33 (relating to mines and other excavations).

   The regulations in Chapter 33 are unnecessary and redundant. The Department of Environmental Protection (DEP) is now the administrative agency responsible for implementing section 2(f) of the act. The Environmental Quality Board (EQB) has promulgated regulations implementing section 2(f) of the act. See 25 Pa. Code Chapter 207 (relating to noncoal underground mines).

Proposed Rulemaking Omitted

   The Department finds that notice of proposed rulemaking is unnecessary, under section 4 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204). The regulations being rescinded are unnecessary, redundant and no longer enforceable. These regulations were superseded by new regulations enacted by the EQB and therefore are no longer in use or enforced. The Department no longer has the authority to enforce the existing regulations.

Statutory Authority

   This rulemaking is issued under the authority provided by sections 2(f) and 12 of the act. Section 2(f) of the act requires all pits, quarries, mines other than coal mines, trenches and other excavations to be operated and conducted to provide adequate protection to workers. Section 12 of the act gives the Department the authority to promulgate implementing regulations.


   The Department was originally responsible for administering and enforcing section 2(f) of the act. To implement this section, the Department promulgated Chapter 33. Authority to administer and enforce these provisions and the rulemaking authority under section 2(f) of the act was transferred to DEP (formerly the Department of Environmental Resources) in 1975. Reorganization Plan No. 2 of 1975 (71 P. S. § 751-22). DEP continued to enforce regulations found in Chapter 33 to apply section 2(f) of the act to underground noncoal mines and mined-out underground noncoal mines used to house other businesses. The EQB promulgated regulations that would implement section 2(f) of the act under sections 2(f) and 12 of the act, Reorganization Plan No. 2 of 1975 (71 P. S. § 751-22) and sections 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. §§ 510-17 and 510-20). DEP and the EQB have promulgated regulations in 25 Pa. Code Chapter 207. Accordingly, the provisions of Chapter 33 are unnecessary and redundant.

Affected Persons

   Owners and operators are now required to comply with the regulations issued by the EQB at 34 Pa.B. 2041 (April 10, 2004). DEP had jurisdiction over pits, quarries and mines since 1975. There is no impact to the Department or persons regulated by it.

Fiscal Impact

   Owners and operators would have to comply with the costs of the regulations issued by DEP and the EQB. There is no impact on the Department or persons regulated by it.

Reporting, Recordkeeping and Paperwork Requirements

   Owners and operators are required to comply with DEP's requirements. There is no impact on the Department or persons regulated by it.

Executive Order 1996-1, Regulatory Review and Promulgation

   DEP engaged in public outreach in developing the amendments to its regulations, implementing section 2(f) of the act. The Department determined that it was unnecessary to duplicate DEP's outreach efforts. The Department coordinated this rulemaking with DEP.

Purpose and Summary

   This rulemaking would rescind Chapter 33.

Sunset Date

   A sunset date is not appropriate. The Department is rescinding Chapter 33.

Effective Date

   The rescission of Chapter 33 becomes effective upon publication of this order in the Pennsylvania Bulletin.

Contact Person

   The contact person is Edward Leister, Director, Bureau of Occupational and Industrial Safety, Department of Labor and Industry, Room 1613, Labor and Industry Building, 7th and Forster Streets, Harrisburg, PA 17120,

Regulatory Review

   Under section 5.1(c) of the Regulatory Review Act (71 P. S. § 745.5a(c)), on September 10, 2008, the Department submitted a copy of the final-form regulations, proposed rulemaking omitted, to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the Senate Committee on Labor and Industry and the House Labor Relations Committee (Committees). In addition to submitting the final-form regulations, the Department also provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department.

   Under section 5.1(j.1)--(j.3) of the Regulatory Review Act, these final-form regulations were deemed approved by the House and Senate Committees on October 15, 2008. IRRC met on October 16, 2008 and approved the rescission in accordance with section 5.1(e) of the Regulatory Review Act.


   The Department finds that:

   (1)  Good cause exists for rescission of these regulations through omission of notice of proposed rulemaking under section 204 of the act of July 31, 1968 (P. L. 769, No. 240) and the regulations thereunder, 1 Pa. Code § 7.4.

   (2)  The rescission of the regulations in the manner provided in this order is necessary and appropriate for the administration and enforcement of the authorizing statute.


   The Department, acting under authorizing statute, orders that:

   (a)  The regulations of the Department, 34 Pa. Code Chapter 33, are amending by deleting §§ 33.1--33.7, 33.11--33.15, 33.21--33.27, 33.31--33.38, 33.41--33.43, 33.51--33.58, 33.61--33.65, 33.71, 33.72, 33.81--33.84, 33.91--33.94, 33.111--33.117, 33.121--33.130, 33.141--33.148, 33.151, 33.161--33.165, 33.171--33.178, 33.181--33.187, 33.191--33.193, 33.201, 33.202, 33.211--33.214, 33.221--33.225, 33.231--33.238, 33.241, 33.242, 33.251--33.255, 33.261--33.263, 33.271--33.276, 33.281--33.289, 33.291--33.297, 33.301 and 33.311--33.319 to read as set forth in Annex A.

   (b)  The Secretary of the Department shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as to legality and form as required by law.

   (c)  The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order shall become effective upon final-form publication in the Pennsylvania Bulletin.

Acting Secretary

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 38 Pa.B. 6123 (November 1, 2008).)

   Fiscal Note: 12-83. No fiscal impact; (8) recommends adoption.

Annex A



CHAPTER 33. (Reserved)

   (Editor's Note: The Department is deleting Chapter 33 in its entirety. The present text of Chapter 33 appears at 34 Pa. Code §§ 33.1--33.319, pages 33-1--33-80, serial pages (237723) to (237800) and (242045) to (242046).)

§§ 33.1--33.7. (Reserved).

§§ 33.11--33.15. (Reserved).

§§ 33.21--33.27. (Reserved).

§§ 33.31--33.38. (Reserved).

§§ 33.41--33.43. (Reserved).

§§ 33.51--33.58. (Reserved).

§§ 33.61--33.65. (Reserved).

§§ 33.71, 33.72. (Reserved).

§§ 33.81--33.84. (Reserved).

§§ 33.91--33.94. (Reserved).

§§ 33.111--33.117. (Reserved).

§§ 33.121--33.130. (Reserved).

§§ 33.141--33.148. (Reserved).

§ 33.151. (Reserved).

§§ 33.161--33.165. (Reserved).

§§ 33.171--33.178. (Reserved).

§§ 33.181--33.187. (Reserved).

§§ 33.191--33.193. (Reserved).

§§ 33.201, 33.202. (Reserved).

§§ 33.211--33.214. (Reserved).

§§ 33.221--33.225. (Reserved).

§§ 33.231--33.238. (Reserved).

§§ 33.241, 33.242. (Reserved).

§§ 33.251--33.255. (Reserved).

§§ 33.261--33.263. (Reserved).

§§ 33.271--33.276. (Reserved).

§§ 33.281--33.289. (Reserved).

§§ 33.291--33.297. (Reserved).

§ 33.301. (Reserved).

§§ 33.311--33.319. (Reserved).

[Pa.B. Doc. No. 08-1966. Filed for public inspection October 31, 2008, 9:00 a.m.]

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