[Federal Register Volume 60, Number 63 (Monday, April 3, 1995)]
[Rules and Regulations]
[Pages 16788-16793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7817]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-111-FOR]


Pennsylvania Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with certain exceptions, a proposed 
amendment to the Pennsylvania permanent regulatory program (hereinafter 
referred to as the Pennsylvania program) under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA). The amendment consists of 
changes to Pennsylvania's Small Operator Assistance Program (SOAP) 
rules. The amendment is intended to revise the Pennsylvania SOAP 
program to be consistent with section 507(c) of SMCRA (Energy Policy 
Act of 1992) and 30 CFR part 795. The proposed amendment would provide 
more comprehensive assistance to SOAP participants than currently 
allowed.

EFFECTIVE DATE: April 3, 1995.

FOR FURTHER INFORMATION CONTACT:Mr. Robert J. Biggi, Director, 
Harrisburg Field Office, Office of Surface Mining Reclamation and 
Enforcement, Harrisburg Transportation Center, Third Floor, Suite 3C, 
4th and Market Streets, Harrisburg, Pennsylvania 17101, Telephone (717) 
782-4036.

SUPPLEMENTARY INFORMATION: 

I. Background on the Pennsylvania Program.
II. Submission of the Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.

I. Background on the Pennsylvania Program

    On July 31, 1982, the Secretary of the Interior conditionally 
approved the Pennsylvania program. Background information on the 
Pennsylvania program including the Secretary's findings, the 
disposition of comments, and a detailed explanation of the conditions 
of approval of the Pennsylvania program can be found in the July 30, 
1982, Federal Register (47 FR 33050). Subsequent actions concerning the 
conditions of approval and program amendments are identified at 30 CFR 
938.11, 938.12, 938.15, and 938.16. [[Page 16789]] 

II. Submission of the Amendment

    The Energy Policy Act of 1992, Pub. L. 102-486, October 24, 1992, 
amended several sections of SMCRA. Section 507(c) was amended to expand 
the coverage of free services that could be provided to qualified 
applicants for permit application information under SOAP. Before 
enactment of the Energy Policy Act, services provided by section 507(c) 
covered the determination of probable hydrologic consequences required 
by subsection 507(b)(11) and the statement of the results of test 
boring or core sampling required by subchapter 507(b)(15). The section 
507(c) revisions expanded the services under subsection 507(b)(11) to 
include the engineering analyses and designs necessary for their 
determination. The revisions also added additional allowable services. 
These additional services include: the development of cross-section 
maps and plans required by subsection (b)(14); the geologic drilling 
and statement of test boring and core sampling required by subsection 
(b)(15); the collection of archaeological information required by 
subsection (b)(13) and any other archaeological and historical 
information required by the regulatory authority; pre-blast surveys 
required by section 515(b)(15)(E); and the collection of site-specific 
resource information and the production of protection and enhancement 
plans for fish and wildlife habitats and other environmental value 
required by the regulatory authority.
    The Energy Policy Act also added section 507(h) which makes the 
operator liable for reimbursement of SOAP expenses if they exceed the 
12-month coal production limit.
    OSM published final regulations to implement the above statutory 
provisions in the Federal Register, 59 FR 28136-28174, May 31, 1994.
    The Pennsylvania Department of Environmental Resources (PADER) 
published proposed rules in the Pennsylvania Bulletin (24 Pa.B. 2120-
2124, April 23, 1994), to revise the existing SOAP provisions to be 
consistent with the Federal SOAP revisions. On October 24, 1994, PADER 
submitted these rules as a program amendment (Administrative Record 
Number PA 833.00).
    OSM announced receipt of the proposed amendment in the November 15, 
1994, Federal Register (59 FR 58802), and, in the same notice, opened 
the public comment period and provided opportunity for a public hearing 
on the adequacy of the proposed amendment. The comment period closed on 
December 15, 1994.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment to the Pennsylvania program.

A. Revisions to Pennsylvania's Regulations That Are Substantively 
Identical to the Corresponding Federal Regulations

------------------------------------------------------------------------
State regulation 25 Pa.                                                 
     Code, chapter               Subject            Federal counterpart 
------------------------------------------------------------------------
86.81(1)(i)............  Probable hydrologic      30 CFR 795.9(b)(1).   
                          consequences.                                 
86.81(1)(ii)...........  Drilling services......  30 CFR 795.9(b)(2).   
86.81(1)(v)............  Preblast surveys.......  30 CFR 795.9(b)(5).   
86.83(b)(2), (b)(3)....  Attributed production..  30 CFR 795.6(a)(2) (i)
                                                   and (ii).            
86.85(a)(1) and (2)....  Application approval...  30 CFR 795.9(a).      
86.94(a)(4) and (5)....  Applicant liability....  30 CFR 796.12(a)(2)   
                                                   and (3).             
------------------------------------------------------------------------

    Because the above proposed provisions are identical in meaning to 
the corresponding Federal regulations, the Director finds that 
Pennsylvania's proposed rules are no less effective than the Federal 
regulations.

B. Revisions to Pennsylvania's Regulations that are not Substantively 
Identical to the Corresponding Federal Regulations

1. Section 86.81, Program Services
    At section 86.81(1), Pennsylvania proposes to delete the word 
``laboratory'' and to replace that term with ``consultant.'' With this 
change, the regulation provides that the PADER will select and pay a 
qualified consultant for providing approved SOAP program services.
    The counterpart Federal language at 30 CFR 795.9(a) uses the term 
``laboratory.'' In its submittal of this change, PADER explained that 
laboratories in Pennsylvania generally provide only the chemical 
analyses of water and overburden samples and work as subcontractors to 
professional engineering and geological consultants who actually 
collect and evaluate data under contract with the PADER. The Director 
concurs that use of the term ``consultant'' more closely reflects the 
circumstances by which SOAP program services are obtained in 
Pennsylvania. The Director finds that use of the term ``consultant'' is 
consistent with the intent of the Federal regulations to pay for SOAP 
program services, and does not render the Pennsylvania program less 
effective than the counterpart Federal regulations at 30 CFR Part 795.
2. Subsections 86.81(1)(iii) and (iv), Program Services
    At subsections 86.81(1) (iii) and (iv), Pennsylvania lists some of 
the permit application requirements that PADER will fund through the 
SOAP program services. Subsection 86.81(1)(iii) is the counterpart to 
30 CFR 795.9(b) (4) and (6) and would provide funding for services that 
would provide a description of the existing resources within and 
adjacent to the proposed permit area.
    Subsection 86.81(1)(iv) is the counterpart of 30 CFR 795.9(b)(3) 
and would provide funding for services that would provide a detailed 
description, to include maps, plans and cross sections, of the proposed 
coal mining activities showing the manner in which the proposed permit 
area will be mined and reclaimed.
    In both of these provisions, 86.81(1)(iii) and (iv), Pennsylvania 
provides several references to regulations that address the data 
requirements for specific types of mining activities that will be 
funded under the expanded SOAP services. In general, the services which 
Pennsylvania is proposing to fund are authorized in the counterpart 
Federal regulations at 30 CFR 795.9(b) (3), (4), and (6). However, the 
references cited by Pennsylvania are general references and may 
include, in addition to fundable services, permit application 
requirements which, if funded, would extend SOAP coverage beyond the 
limits established by SMCRA and the Federal regulations at 30 CFR 
795.9(b).
    Section 507(c)(1) of SMCRA establishes the SOAP to pay for various 
permit application requirements, including (a) the determination of 
probable hydrologic consequences; (b) the development of cross-
sections, maps, and plans; (c) the geologic drilling and statement of 
results of test borings and core samplings; (d) the collection of 
archaeological information and the preparation of plans necessitated 
thereby; (e) preblast surveys; and (f) the collection of site-specific 
resource information and production of protection and enhancement plans 
for fish and wildlife habitats and other environmental values. The 
Federal rules at 30 CFR 795.9(b) further clarify which permit 
application requirements may be funded through SOAP. [[Page 16790]] 
    30 CFR 795.9(b)(3) provides for the funding of the development of 
cross-section maps and plans required by 30 CFR 779.25 for surface 
mining and section 783.25 for underground mining permit applications.
    30 CFR 795.9(b)(4) provides for the funding of the collection of 
archeological and historic information and related plans required by 30 
CFR 779.12(b) and 783.12(b) and 30 CFR 780.31 and 784.17 and any other 
archeological and historic information required by the regulatory 
authority.
    30 CFR 795.9(b)(6) provides for the funding of site-specific 
resources information, the production of protection and enhancement 
plans for fish and wildlife habitats required by 30 CFR 780.16 and 
784.21, and information and plans for any other environmental values 
required by the regulatory authority under SMCRA.
    OSM's review of the references cited by Pennsylvania at subsections 
86.81(1) (iii) and (iv) has determined that funding has not been 
explicitly authorized by the Federal regulations at 30 CFR 795.9(b) for 
the permitting requirements contained in the following Pennsylvania 
citations:

25 Pa. Code
    87.41-42
    87.48-49
    87.52-53
    87.68
    87.70-76
    87.78-83
    88.21-22(1)
    88.28-29
    88.30
    88.32
    88.41-44
    88.46
    88.48
    88.50-55
    88.57-61
    89.31-32
    89.37
    89.71-73
    89.102
    89.121-122
    89.141(d)

    Also, the permitting requirements at 25 Pa. Code 87.77, 88.56, and 
89.38 are not authorized for SOAP funding to the extent that they apply 
to public parks.
    Both the Energy Policy Act and 30 CFR 795.9(b)(1) authorize 
reimbursement for engineering analyses and designs necessary for the 
determination of probable hydrologic consequences, with the rule 
specifying that this provision applies to ``engineering analyses and 
designs necessary for the determination in accordance with sections 
780.21(f), 784.14(e), and any other applicable provisions of this 
chapter.'' Accordingly, preparation of engineering analyses and designs 
essential to development of an adequate probable hydrologic 
consequences determination is an authorized SOAP service, whereas 
preparation of analyses and designs needed solely to satisfy other 
program requirements is not. For example, preparation of diversion and 
impoundment plans and designs would be an authorized SOAP service only 
if the laboratory or other qualified entity cannot satisfactorily 
prepare the probable hydrologic consequences determination in the 
absence of these plans and designs.
    The Energy Policy Act further authorizes funding for the 
development of cross sections, maps and plans required by section 
507(b)(14) of SMCRA. These requirements are reflected primarily in 30 
CFR 779.25 and 783.25, which are cross-referenced in 30 CFR 
795.9(b)(3). However, section 507(b)(14) of the Act also provides the 
basis for those portions of 30 CFR 780.18(b)(3) and 784.13(b)(3) that 
require cross sections showing the anticipated final surface 
configuration of the proposed permit area. Therefore, the regulatory 
authority may fund preparation of these cross sections even though 30 
CFR 795.9(b)(3) does not cross-reference the underlying rules.
    Because the requirements for operation and reclamation plans and 
maps, air pollution control plans, and subsidence control plans are not 
derived from section 507(b)(14) of SMCRA, SOAP funds may not be used 
for development of these types of maps and plans unless other 
provisions of section 507(c) of the Act or 30 CFR 795.9(b) specifically 
authorize such expenditures. The State may be able to demonstrate that 
funding for some aspects of these maps and plans is appropriate under 
30 CFR 795.9(b)(6), which authorizes information collection and 
preparation of plans ``for any other environmental values required by 
the regulatory authority under the Act.''
    To be consistent with SMCRA and the counterpart Federal 
regulations, Pennsylvania must ensure that when implementing its SOAP 
provisions, it does not authorize expenditures outside of those allowed 
by SMCRA and the Federal regulations as discussed above. Although the 
Energy Policy Act and the revisions to 30 CFR 795.9(b) have greatly 
expanded the scope of services available under SOAP, funding remains 
limited. Therefore, the program administrator may need to ration 
funding under the provisions of 30 CFR 795.11(b).
    The Director is approving subsections 86.81(1) (iii) and (iv) to 
the extent that Pennsylvania implements these provisions consistent 
with the SOAP funding provisions of SMCRA section 507(c) and the 
implementing Federal regulations at 30 CFR 795.9(b) as discussed above. 
The Director is not approving proposed subsections 86.81(1) (iii) and 
(iv) to the extent that the proposed subsections would authorize the 
expenditure of Pennsylvania SOAP funds under the subsections listed 
above for services that are not fundable under section 507(c)(1) of 
SMCRA or 30 CFR 795.9(b).
3. Section 86.82, Responsibilities
    Subsection 86.82(a)(1) is being amended to provide that the PADER 
will develop and maintain a list of qualified consultants and qualified 
laboratories, and select and pay consultants for services rendered. 
Prior to this amendment, the provision included qualified laboratories 
but not consultants. As discussed above in Finding B-1, the addition of 
``consultants'' more closely reflects the circumstances by which SOAP 
program services are obtained in Pennsylvania. The Director finds that 
the use of the term ``consultant'' is consistent with the intent of the 
Federal regulations to pay for SOAP program services, and does not 
render the Pennsylvania program less effective than the Federal 
regulations.
4. Subsection 86.83(a)(2), Eligibility for Assistance
    Subsection 86.83(a)(2) is being amended to provide that an 
applicant is eligible for assistance if the applicant establishes that 
the probable total and attributed production from the applicant's 
operations during the 12-month period immediately following the date on 
which the applicant is issued the mining activities permit will not 
exceed 300,000 tons.
    30 CFR 795.6(a)(2) provides that to be eligible for assistance, the 
applicant must establish that the probable total attributed annual 
production from all locations will not exceed 300,000 tons. In the 
preamble to the approval of the Federal regulation at 30 CFR 
795.6(a)(2) (59 FR 28139, May 31, 1994), OSM stated that in order to 
reduce the potential for fraud and abuse, past production will be used 
as the standard for evaluating whether an operator's annual production 
is reasonably expected to be within the 300,000 ton limit for 
eligibility under the SOAP. Therefore, to be eligible for SOAP 
assistance, past production records should provide sound evidence that 
following SOAP approval, production is reasonably likely to remain 
under 300,000 tons annually. [[Page 16791]] 
    Therefore, the Director is approving the proposed amendment to 
subsection 86.83(a)(2) except to the extent that the provision only 
requires the applicant to establish that annual production following 
permit issuance is reasonably likely to remain under 300,000 tons for 
just the first year. In addition, the Director is requiring that 
Pennsylvania further amend subsection 86.83(a)(2) to provide that the 
applicant must establish that the operator's probable total attributed 
annual production following permit issuance will remain under 300,000 
tons for all years, not just the first year.
5. Subsection 86.86(b)(6), Right of Entry
    This provision is being amended to provide that the application for 
SOAP assistance shall contain copies of documents which show that the 
legal right of entry necessary to meet the provisions of section 86.64 
(relating to right of entry) have been obtained by the applicant.
    The existing subparagraphs 86.84(b)(6) (i) and (ii) are being 
deleted. Subsection (i) required the applicant to provide documents 
that show the applicant has a legal right to enter and commence mining 
within the permit area. Subsection (ii) required documents showing a 
legal right of entry has been obtained for the office, department and 
laboratory personnel to inspect the lands to be mined and adjacent 
lands which may be affected to collect environmental data or install 
necessary instruments.
    The Director finds that the proposed amendment with the requirement 
to comply with the approved right of entry provisions at section 86.64 
is no less effective than the Federal regulations at 30 CFR 795.7(f).
6. Subsection 86.86(a), Notice
    This provision is being amended to delete ``laboratories'' and add 
in its place ``consultants.'' As discussed above in Finding B-1, the 
use of ``consultant'' does not render the Pennsylvania program less 
effective than the corresponding Federal regulations.
7. Subsection 86.87(a), Determination of Data Requirements
    This provision is being amended to provide that if specifically 
authorized by the PADER in an approved work order, the development of 
information on environmental resources, operations plans and 
reclamation plans may proceed concurrently with data collection and 
analyses required for the determination of the probable hydrologic 
consequences of the proposed mining activities. While there is no 
direct counterpart in the Federal regulations, the provision is 
consistent with the SOAP provision at 30 CFR part 795.9(c) and can be 
approved.
8. Section 86.88, Data for Probable Hydrologic Consequences (PHC)
    This provision is being deleted in its entirety. The requirement to 
provide a PHC determination for the applicant is located at subsection 
86.81(1)(i). The Director finds that the proposed deletion does not 
render the Pennsylvania program less effective and can be approved.
9. Section 86.89, Data for Test Borings and Core Samplings
    This provision is being deleted in its entirety. The requirement to 
provide data for the results of test borings and core samplings is 
located at subsection 86.81(1)(ii). The Director finds that the 
proposed deletion does not render the Pennsylvania program less 
effective and can be approved.
10. Section 86.91, Definitions and Responsibilities
    In subsection 86.91(a), Pennsylvania is amending the term 
``qualified laboratory'' to read ``qualified consultant and qualified 
laboratory.'' Nonsubstantive wording changes are also being made.
    The term ``qualified consultant'' is being added to subsections 
86.91(b) and (c).
    As discussed in Finding B-1, the use of the term ``qualified 
consultant'' more closely reflects the circumstances by which the SOAP 
services are obtained in Pennsylvania. The Director finds that the use 
of the term ``qualified consultant'' is consistent with the intent of 
the Federal SOAP regulations and does not render the Pennsylvania 
program less effective than the Federal regulations.
11. Section 86.92, Basic Qualifications
    Pennsylvania is proposing to add ``qualified consultant'' or 
``consultant'' to subsections 86.92 (a) and (b). As discussed above in 
Finding B-1, the use of consultants to provide SOAP program services 
does not render the Pennsylvania program less effective and can be 
approved.
    The State is adding ``overburden laboratory'' at subsection 
86.92(a)(1). As amended, 86.92(a)(1) requires that to be designated as 
a qualified consultant or laboratory, the consultant or laboratory must 
be staffed with experienced, professional personnel in the fields of 
hydrology, mining engineering, aquatic biology, geology or chemistry 
applicable to the work to be performed as a water laboratory, 
``overburden laboratory'' or consulting firm. The Director finds that 
this amendment is consistent with 30 CFR 795.10(a)(1).
    The State is adding a new subsection 86.92(a)(6)(iv) to require a 
demonstration by the laboratory or consultant that it has the 
analytical, monitoring, and measuring equipment capable of meeting the 
applicable standards and methods contained in ``[t]he Department's 
Overburden Sampling and Testing Manual.''
    The Director finds this requirement is consistent with and no less 
effective than the counterpart Federal regulations at 30 CFR 
795.10(a)(4) concerning qualified laboratories.
    At subsection 86.92(b) the State is deleting language and adding 
replacement language to make it clear that a qualified laboratory or 
consultant must be capable of performing the program services in newly 
revised section 86.81. The Director finds this change to be consistent 
with and no less effective than the Federal regulations at 30 CFR 
795.10(a)(6).
12. Section 86.93, Assistance Funding
    The State is deleting the phrase ``or the costs of test borings or 
core sampling'' from subsection 86.93(a). As amended, the provision 
prohibits SOAP funds from OSM to be used to cover administrative costs 
of the PADER. The Director finds that the deletion of the prohibition 
that SOAP funds may not be used to cover the costs of test borings or 
core sampling is consistent with 30 CFR 795.9(b)(2) which authorizes 
such payments.
13. Section 86.94, Applicant Liability
    a. The State is adding the term ``consultant'' at subsections 86.94 
(a), (a)(2), and (d)(1). The State is deleting the term ``laboratory'' 
at subsections (a)(2) and (d)(1). As discussed above in Finding B-1, 
the use of the term ``consultant'' more accurately reflects the 
circumstances by which SOAP program services are obtained in 
Pennsylvania. The Director finds that use of the term ``consultant'' is 
consistent with the intent of the Federal regulations to pay for SOAP 
program services, and does not render the Pennsylvania program less 
effective than the Federal regulations at 30 CFR Part 795.
    b. The State is adding the phrase ``beyond the applicant's 
control'' to the end of the sentence in subsection 86.94(a)(2). With 
this change, the applicant would not be liable for the costs of program 
services rendered if the consultant's report indicates that the 
application is not approvable for [[Page 16792]] technical reasons 
beyond the applicant's control. The Director finds the addition is 
consistent with the Federal regulation at 30 CFR 795.12(b) which allows 
the SOAP administrator to waive the reimbursement obligation if the 
administrator finds that the applicant at all times acted in good 
faith.
14. Section 86.95, Measurement
    This provision is being amended to delete references to the 
specific name and number of the OSM form on which an operator reports 
coal production for purposes of complying with the Abandoned Mine Land 
Reclamation Program requirements. The Director finds that this change 
improves the accuracy of the provision and does not render the 
Pennsylvania program less effective than the Federal regulations.

IV. Summary and Disposition of Comments

Federal Agency Comments

    Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i), 
comments were solicited from various interested Federal agencies. The 
Mine Safety and Health Administration (MSHA) of the U.S. Department of 
Labor responded that the amendment will not impact on any existing MSHA 
regulations (Administrative Record No. PA 833.06). The Soil 
Conservation Service of the U.S. Department of Agriculture responded 
that there is no indication that the approval of this amendment would 
result in any environmental degradation or cause accelerated erosion 
and sedimentation problems (Administrative Record No. PA 833.05).

Public Comments

    A public comment period and opportunity to request a public hearing 
was announced in the November 15, 1994, Federal Register (59 FR 58802). 
The comment period closed on December 15, 1994. No one requested an 
opportunity to testify at the scheduled public hearing so no hearing 
was held. The Pennsylvania Coal Association commented in support of the 
amendment.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain 
the written concurrence of the Administrator of the EPA with respect to 
any provisions of a State program amendment that relate to air or water 
quality standards promulgated under the authority of the Clean Water 
Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et 
seq.). The Director has determined that this amendment contains no 
provisions in these categories and that EPA's concurrence is not 
required.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (Administrative Record No. PA 833.01). EPA 
responded on December 6, 1994 (Administrative Record No. PA 833.08), 
and concurred with the proposed amendments.

V. Director's Decision

    Based on the findings above, the Director is approving, except as 
noted below, Pennsylvania's SOAP amendment as submitted by Pennsylvania 
on October 24, 1994.
    As noted in Finding B-2 above, the Director is approving chapter 
86.81(1) (iii) and (iv), concerning fundable program services, only to 
the extent that Pennsylvania will implement these provisions consistent 
with the SOAP funding provisions of SMCRA section 507(c)(1) and the 
implementing Federal regulations at 30 CFR 795.9(b). The Director is 
not approving proposed subsections 86.81(1) (iii) and (iv) to the 
extent that the proposed subsections would authorize the expenditure of 
Pennsylvania SOAP funds under the subsections listed above in Finding 
B-2 for services that are not fundable under section 507(c)(1) of SMCRA 
or 30 CFR 795.9(b).
    As discussed in Finding B-4 above, the Director is approving 
chapter 86.83(a)(2) except to the extent that the provision limits an 
operator's obligation to establish that annual production following 
permit approval is reasonably likely to remain under 300,000 tons for 
all years, not just the first year. In addition, the Director is 
requiring that Pennsylvania further amend chapter 86.83(a)(2) to 
provide that the applicant must establish that the operator's probable 
total attributed annual production following permit issuance is 
reasonably likely to remain under 300,000 tons for all years, not just 
the first year.
    The Federal regulations at 30 CFR Part 938 codifying decisions 
concerning the Pennsylvania program are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In his 
oversight of the Pennsylvania program, the Director will recognize only 
the statutes, regulations and other materials approved by him, together 
with any consistent implementing policies, directives and other 
materials, and will require the enforcement by Pennsylvania of only 
such provisions.
VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) 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

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the [[Page 16793]] 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 regulations.

List of Subjects in 30 CFR Part 938

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 24, 1995.
Ronald C. Recker,
Acting Assistant Director, Eastern Support Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 938--PENNSYLVANIA

    1. The authority citation for Part 938 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. In Section 938.15, paragraph (cc) is added to read as follows:


Sec. 938.15  Approval of regulatory program amendments.

* * * * *
    (cc) The SOAP amendment to the Pennsylvania program concerning the 
Small Operator Assistance Program as submitted to OSM on October 24, 
1994, is approved, except as noted herein, effective April 3, 1995:

25 Section 86.81--Program services. Subsection 86.81(1)(iii) and 
(iv) are approved to the extent that the State will implement those 
services consistent with the SOAP funding provisions of SMCRA 
section 507(c)(1) and the implementing Federal regulations at 30 CFR 
795.9(b). The Director is not approving proposed subsections 
86.81(1)(iii) and (iv) to the extent that the proposed subsections 
would authorize the expenditure of Pennsylvania SOAP funds under the 
subsections listed in the preamble at Finding B-2 for services that 
are not fundable under section 507(c)(1) of SMCRA or 30 CFR 
795.9(b).
25 Section 86.82--Responsibilities.
25 Section 86.83--Eligibility for assistance. Subchapter 86.83(a)(2) 
is approved except to the extent that the provision only requires 
the operator to establish that annual production following permit 
approval is reasonably likely to remain under 300,000 tons for just 
the first year.
25 Section 86.84--Applications for assistance.
25 Section 86.85--Application approval.
25 Section 86.86--Notice.
25 Section 86.87--Determination of data requirements.
25 Section 86.88--Deletion of this subchapter.
25 Section 86.89--Deletion of this subchapter.
25 Section 86.91--Definitions and responsibilities.
25 Section 86.92--Basic qualifications.
25 Section 86.93--Assistance funding.
25 Section 86.94--Applicant liability.
25 Section 86.95--Measurement.

    3. In Sec. 938.16, paragraph (ooo) is added to read as follows:


Sec. 938.16  Required regulatory program amendments.

* * * * *
    (ooo) By September 1, 1995, Pennsylvania shall amend 25 chapter 
86.83(a)(2) to be no less effective than 30 CFR 795.6(a)(2) to provide 
that the applicant must establish that the operator's probable total 
attributed annual production following permit issuance will remain 
under 300,000 tons for all years, not just the first year.

[FR Doc. 95-7817 Filed 3-31-95; 8:45 am]
BILLING CODE 4310-05-M