[Federal Register Volume 65, Number 57 (Thursday, March 23, 2000)]
[Rules and Regulations]
[Pages 15553-15558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7207]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 938

[PA-127-FOR]


Pennsylvania Regulatory Program

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

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 revises the 
Pennsylvania program to incorporate changes made by Pennsylvania 
regarding administration of the Small Operators Assistance Program 
(SOAP).

EFFECTIVE DATE: March 23, 2000.

FOR FURTHER INFORMATION CONTACT: Robert J. Biggi, Director, Office of 
Surface Mining Reclamation and Enforcement, Harrisburg Field Office, 
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 30, 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.

II. Submission of the Amendment

    By letter dated November 8, 1999, (Administrative Record Number PA 
846.02), Pennsylvania submitted an amendment to the Pennsylvania 
program. The amendment resulted from regulations the Pennsylvania 
Department of Environmental Protection (PADEP) published in the 
Pennsylvania Bulletin (28 Pa. B. 15, January 3, 1998). The regulations 
were published to revise Pennsylvania's existing SOAP regulations to be 
consistent with the federal SOAP revisions and because of the 
Department's Regulatory Basics Initiative (RBI). Under the RBI, 
regulations are revised because they were considered unclear, 
unnecessary or were more stringent than the corresponding federal 
regulations. Pennsylvania also published the regulations to address an 
amendment required by OSM [see 30 CFR 938.16(ooo)].
    The proposed amendment was published in the Federal Register (64

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FR 66598, November 29, 1999), and in the same notice, OSM 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 29, 1999. No public hearings were requested or held.

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. 25 PA Code 86.80. Definitions

    The definition of the phrase, ``qualified consultant and qualified 
laboratory'' was moved to this newly created section from 25 PA Code 
86.91. There was only a slight wording change when it was moved. The 
use of the term ``qualified consultant'' was discussed and approved in 
a previous Pennsylvania amendment regarding SOAP (60 FR 16789 and 
16791, April 3, 1995). In approving that amendment, the Director found 
that use of the term ``qualified consultant'' was consistent with the 
intent of the federal regulations and did not render the Pennsylvania 
program less effective than the counterpart regulations at 30 CFR part 
795. With regard to the current amendment, the Director finds that 
moving of the definition and the slight wording change to the 
definition of ``qualified consultant and qualified laboratory'' is no 
less effective than the federal definition found at 30 CFR 795.3.

B. 25 PA Code 86.81, Program Services

    The first change proposed to 25 PA Code 86.81 is the deletion of 
the phrase ``for qualified small operators who request assistance'' in 
subsection (a) when describing the Department's duties. A new 
subsection (1) which requires the Department to, ``Review requests for 
assistance'' is proposed to be added. While there is no direct federal 
counterpart to this regulation, the Director finds the amendment to be 
consistent with 30 CFR 795.9 regarding administration of the SOAP 
program and data requirements and therefore approves the change.
    PADEP further changed this section by moving the referenced 
regulations of subsection (a)(1)(iii) to newly created subsections 
(a)(2)(iii)(A), (B), and (C) and by stating that the Department will 
select and pay a qualified consultant to provide a description of the 
existing resources within and adjacent to the proposed permit area in 
accordance with one of those subsections. In moving the referenced 
regulations, PADEP dropped references to 25 PA Code Secs. 87.48, 87.49, 
87.52, 87.53, 88.28, 88.29, 88.30, 88.32, 88.33, 89.37, 89.38, 89.71, 
89.72, 89.73, 89.102, 89.121, 89.122, 89.141, and 89.142(a). The 
remaining references are: (A) Sections 87.41-87.47, 87.50 and 87.54, 
(B) 88.21-88.27 and 88.31, and (C) 89.33-89.36, 89.38 and 89.74. The 
cross references listed in (C) that in 1995 (60 FR 16788) were approved 
previously remain approved except as noted later in the discussion 
regarding Sec. 89.34.
    Similarly, the Department changed subsection (a)(1)(iv) by moving 
referenced regulations to newly created subsections (a)(2)(iv)(A), (B), 
and (C) and by stating that the Department will select and pay a 
qualified consultant to 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 accordance with one of those subsections. In moving the 
referenced regulations, PADEP dropped references to 25 PA Code 
Secs. 87.68, 87.70-87.76 (inclusive), and 87.78-87.83 (inclusive), 
88.41-88.44 (inclusive), 88.46, 88.48, 88.50-88.55 (inclusive), 88.57-
88.61 (inclusive). The remaining references are: (A) Sections 87.69, 
87.77 and 87.84 and (B) Sections 88.49, 88.56 and 88.62.
    For Chapter 89 references to subsection (a)(2)(iv)(C), PADEP added 
Secs. 89.33, 89.34, and 89.35 while deleting references to Secs. 89.31, 
89.32, 89.37, 89.71-89.73 (inclusive), 89.102, 89.122(b), 89.141, and 
89.142(a). Two of the added Chapter 89 references (Secs. 89.33 and 
89.35) deal with geology and prediction of the hydrologic consequences 
for underground mines and coal preparation facilities. The information 
required by these sections will be used to determine the probable 
hydrologic consequences and the geology information as provided for in 
30 CFR 795.9(b)(1) and (2). Therefore, the Director finds the addition 
of these references makes this portion of the amendment to be no less 
effective than the federal rule and approves the change.
    The third Chapter 89 reference, Sec. 89.34, deals with hydrology 
for underground mines and coal preparation facilities. Subsections 
(a)(1)(i)and (ii), (a)(2)(i), and (b) deal with collection of 
groundwater and surface water information for the proposed permit and 
adjacent areas. The information required by these subsections will be 
used to determine the probable hydrologic consequences information as 
provided for in 30 CFR 795.9(b)(1). However, subsections (a)(1)(iii) 
and (a)(2)(ii) deal respectively with groundwater and surface water 
monitoring plans. The information required by these subsections is not 
of the nature that would be funded under federal SOAP guidelines. In 
1995, OSM had inadvertently approved in 86.81 (a)(1)(iii), the cross 
reference to Sec. 89.34(a)(1)(iii) and (a)(2)(ii). Now, however, the 
Director is approving incorporation of the reference to Sec. 89.34 at 
86.81(a)(2)(iii)(C) and 86.81(a)(2)(iv)(C) to the extent that 
Pennsylvania implements this provision consistent with the SOAP funding 
provisions of SMCRA section 507(c)(1)(A) and the implementing 
regulations at 30 CFR 795.9(b)(1). The Director is not approving the 
incorporation of this references into subsections 86.81(a)(2)(iii)(C) 
and 86.81(a)(2)(iv)(C) 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)(A) of SMCRA or 30 CFR 795.9(b)(1).
    PADEP changed the references to the regulations at 86.81(a)(2)(iii) 
and 86.81(a)(2)(iv) in response to OSM's comments to Pennsylvania's 
previous SOAP amendment (60 FR 16788). In reviewing that amendment, OSM 
required PADEP to correct regulatory citations that are beyond the 
scope of services authorized by 30 CFR 795. While PADEP deleted most of 
the regulatory citations OSM felt were beyond the scope of services 
authorized by 30 CFR 795, there are still several that remain including 
references in 25 PA Code 86.81(a)(2)(iii)(A) and (B) to Secs. 87.41, 
87.42(1), 88.21, and 88.22(1). Sections 25 PA Code 87.41 and 88.21 
correspond to 30 CFR 779.11, (description in permit application of 
existing, premining environmental resources that may be affected or 
impacted) and 25 PA Code 87.42(1) and 88.22(1) correspond to 30 CFR 
779.12(a) (description and identification of lands, etc.). Neither the 
requirements noted in 30 CFR 779.11 nor 779.12(a) are referenced in 
federal regulations as being authorized for payment under the SOAP 
program. The Director is approving subsections 86.81(a)(2)(iii)(A) and 
(B) to the extent that Pennsylvania implements these provisions 
consistent with the SOAP funding provisions of SMCRA section 507(c) and 
the implementing regulations at 30 CFR 795.9(b). The Director is not 
approving proposed subsections 86.81(a)(2)(iii)(A) and (B) to the 
extent that the proposed

[[Page 15555]]

subsections would authorized 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).
    In the 1995 SOAP amendment, OSM also noted that 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 (60 FR 
16790). The references to public parks remain in subsections 
86.81(a)(2)(iv)(A), (B) and (C). The Director is approving the 
reference of Secs. 87.77, 88.56 and 89.38 in subsections 
86.81(a)(2)(iv)(A), (B) and (C) to the extent that Pennsylvania 
implements these provisions consistent with the SOAP funding provisions 
of SMCRA section 507(c)(1)(D) and the implementing regulations at 30 
CFR 795.9(b)(4). The Director is not approving the incorporation of 
these references into subsections 86.81(a)(2)(iv)(A), (B) and (C) 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)(D) of 
SMCRA or 30 CFR 795.9(b)(4).
    Finally, PADEP added subsection (b) which provides that the 
applicant is responsible for costs exceeding the amount of funds 
allocated for the services to the applicant. This requirement was moved 
from 25 PA Code 86.94(c). While there is no direct federal counterpart 
to subsection (b), the Director finds this proposal is consistent with 
the federal requirements at 30 CFR 795.11(b) regarding allocation of 
funds and approves this change.

C. 25 PA Code 86.82, Responsibilities

    This subsection removes language that states the Department will 
review requests for assistance and determine qualified operators. This 
change does not significantly impact the Department's procedures and 
does not diminish the duties of the program administrator as required 
in 30 CFR Secs. 795.8 and 795.9 since the authority by the Department 
to approve or deny an application for assistance is still provided for 
in 25 PA Code 86.85. Accordingly, the Director finds that the deletion 
does not render the Pennsylvania program less effective than the 
federal program and therefore approves this change.

D. 25 PA Code 86.83, Eligibility for Assistance

    The previous language of this section read that an applicant is 
eligible for assistance if 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. Subsection 25 PA Code 
86.83(a)(2) now reads, ``establishes that the probable total attributed 
annual production from all locations on which the applicant is issued 
the mining activities permit will not exceed 300,000 tons.'' PADEP 
included the phrase ``all locations'' in this subsection to make clear 
the extent of operations to be included in the tonnage requirements.
    A second change was made to this subsection to address a program 
amendment required by OSM in the 1995 SOAP approval (60 FR 16790). The 
required regulatory program amendment at 30 CFR 938.16(ooo) required 
Pennsylvania to amend 25 PA Code 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. The current proposed 
amendment removed the phrase, ``the applicant's operations during the 
12-month period immediately following the date.'' This removal makes it 
clear that the 300,000 ton limit as required by the federal regulations 
now applies in Pennsylvania for all years following permit issuance. 
The Director finds that the changes are no less effective than the 
federal requirements of 30 CFR 795.6(a)(2) and can be approved. The 
required regulatory program amendment at 30 CFR 938.16 (ooo) is removed 
and reserved.
    The final change to 25 PA Code 86.83 is the addition of subsection 
(c) which states, ``For the purpose of this subchapter, measurement of 
coal production will be based on the production reported to the Office 
of Surface Mining Reclamation and Enforcement for the purpose of the 
reclamation fee payment.'' This section was formerly located in 25 PA 
Code 86.95 which was previously approved by OSM. There were no 
substantive changes in the language. Therefore, the Director finds that 
this section is no less effective than the federal regulations and 
approves the change.

E. 25 PA Code 86.84, Applications for Assistance

    Pennsylvania proposed to delete subsection (a) which provides, 
``Persons wishing to receive assistance shall file a Small Operator 
Assistance Program application with the Department at any time after 
initiation of the program.'' Former subsection (b) is now designated as 
subsection (a).
    Subsection (b)(2)(iii) which required applicants for SOAP benefits 
to submit a surface mining operator's license as part of the 
application was also deleted. The requirement to submit information 
regarding a mine operator's license was added as subsection (a)(7). 
This subsection requires the mine operator's license number to be 
submitted as part of the application.
    The final change to this subsection was made to former subsection 
(c) which is now designated as subsection (b). Previously, this 
subsection required two copies of the application for assistance to be 
submitted, one of which was to be attested by a notary public or 
district justice. The subsection now reads, ``The application shall be 
attested by a notary public or district justice.''
    There are no specific federal counterparts to the deleted language. 
The deletions do not render the Pennsylvania program less effective 
than the federal requirements and therefore are approved.

F. 25 PA Code 86.85, Application approval and notice

    This section was amended by adding subsection (a)(3) which requires 
PADEP to provide the applicant a copy of the contract or other 
appropriate work order for the qualified consultant's services and the 
consultants' report within 15 Days of the Department's final approval. 
Subsection (c) was added which requires the Department to inform the 
applicant in writing of a decision to deny the application with 45 days 
of receipt of an application for assistance. The regulations require 
the Department to state the reason for the denial.
    The federal rules at 30 CFR 795.8 require written notification to 
the applicant when the program administrator finds the applicant either 
eligible or ineligible for assistance. They do not specify how many 
days before a decision must be made on the application for assistance. 
The Director finds 45 days is a reasonable time period and finds that 
these subsections are no less effective than the federal regulations at 
30 CFR 795.8 (a) and (b) and can be approved.
    Subsection (b) was modified to make it clear that granting of 
assistance under the SOAP program does not imply that the Department 
will approve a subsequent permit action. While there is no federal 
counterpart to this requirement, the Director finds that this change is 
not inconsistent with SMCRA and the federal regulations.

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G. 25 PA Code 86.86, Notice

    This provision is being deleted in its entirety. The provisions 
requiring the Department to notify the applicant of decisions regarding 
the application are now found in 25 PA Code 86.85(a) and (c).
    The Director finds that this proposed deletion does not render the 
Pennsylvania program less effective than the federal program and 
approves the deletion.

H. 25 PA Code 86.87, Determination of data requirements

    Subsection (a) was rewritten by moving a phrase to clarify the 
section. No language was deleted or added. This section provides that 
the Department will determine the data collection requirements to meet 
the objectives of the program. Development of information on 
environmental resources, operation 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 if specifically authorized by the Department in an 
approved work order.
    While there is no direct counterpart in the federal regulations, 
the Director finds the provision is consistent with the SOAP provision 
at 30 CFR 795.9(c) which allow data collection and analysis to proceed 
concurrently with the development of mining and reclamation plans and 
approves the change.

I. 25 PA Code 86.91, Definitions and Responsibilities

    This provision is being deleted in its entirety. This section 
contained the definitions for the terms ``qualified consultant'' and 
``qualified laboratory.'' These definitions are found in the newly 
created section 25 PA Code 86.80.
    Subsection (b) contained the procedures people who desired to be 
included in the list of qualified consultants or qualified laboratories 
must follow. These requirements are now found at newly created 25 PA 
Code 86.92(c).
    Finally, subsection (c) which required the Department to designate 
and maintain a list of qualified consultant and qualified laboratories 
is eliminated. There is no federal requirement that a list of qualified 
consultants or laboratories be maintained by Pennsylvania. Pursuant to 
25 PA Code 86.92, Pennsylvania still determines which laboratories or 
consultants can provide services under the SOAP program.
    The Director finds that the moving of subsections (a) and (b) and 
the deletion of subsection (c) does not render the Pennsylvania program 
less effective than the federal regulations and approves the changes.

J. 25 PA Code 86.92, Basic Qualifications

    As stated in the discussion regarding 25 PA Code 86.91 above, 
subsection (c) was added to define the procedures people must follow to 
be included in PADEP's list of qualified consultants or qualified 
laboratories.
    This requirement was formerly found at 25 PA Code 86.91(b) which 
was previously approved by OSM. There were no substantive changes in 
the language of the requirement. Therefore, the Director finds that 
this section is no less effective than the federal regulations and 
approves the change.

K. 25 PA Code 86.94, Applicant Liability

    Subsection (a) describes the circumstances under which an operator 
will be liable for reimbursing the cost of services performed. One of 
those circumstances as found in Subsection (a)(3) was changed from 
failing to mine within three years after obtaining a permit to failure 
to commence mining within three years after obtaining a permit.
    The federal regulation at 30 CFR 795.12 does not specify what stage 
of mining an operator must be in before he or she is liable for 
reimbursement to the SOAP program. Pursuant to 30 CFR 773.19(e) and 25 
PA Code 86.40(b), a permit is terminated for failing to start mining 
within three years of permit issuance. Accordingly, it is a reasonable 
interpretation that the SOAP program should be reimbursed for any funds 
distributed to that terminated permit. Thus, the Director finds that 
this subsection is consistent with the federal regulations at 30 CFR 
795.12 and can be approved.
    Subsection (c) was deleted and moved to 25 PA Code 86.81(b). This 
subsection provided that the applicant was responsible for costs 
exceeding the amount of funds allocated for the services to the 
applicant. The Director finds that moving this subsection does not 
render the Pennsylvania program less effective than the federal 
regulations and therefore approves the change.

L. 86.95, Measurement

    This section was deleted in its entirety. The requirement to use 
coal production as reported to the Office of Surface Mining Reclamation 
and Enforcement for fee payment purposes also for eligibility for 
participating in SOAP was moved to 86.83(c). The Director finds that 
deletion of this subsection does not render the Pennsylvania program 
less effective than the federal requirements and is approved.

IV. Summary and Disposition of Comments

Federal Agency Comments

    Pursuant to 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i), the 
Director solicited comments on the proposed amendment from various 
federal agencies with an actual or potential interest in the 
Pennsylvania program.
    The U.S. Department of Labor, Mine Safety and Health Administration 
(MSHA) commented that the word ``either'' after the phrase ``in 
accordance with'' found at 86.81(a)(2)(iii) should be deleted. The 
Director agrees that this typographical error should be deleted but its 
inclusion does not render the program less effective nor does it cause 
confusion. MSHA also commented that the agency reference at 
86.84(a)(3)(ii) to ``Mining Enforcement and Safety Administration'' 
should be replaced with the ``Mine Safety and Health Administration.'' 
The Director agrees that this is an incorrect reference. However, 
subsection 86.84(a)(3)(ii) is outside the scope of the amendment since 
it was not amended by the proposed submission. Pennsylvania should 
correct this reference in future amendments.

Public Comments

    A public comment period and opportunity to request a public hearing 
was announced in the November 29, 1999, Federal Register (64 FR 66598). 
The comment period closed on December 29, 1999. No one requested an 
opportunity to testify at a public hearing, so no hearing was held.
    The only written comments received were from the Pennsylvania 
Historical and Museum Commission. The Commission stated that it will 
continue to assist operators qualifying under the SOAP program to 
identify impacts to cultural resources within the proposed project 
areas.
    The proposed amendment does not modify this relationship and 
therefore the Commission had no substantive comments about the 
amendment.

Environmental Protection Agency

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to

[[Page 15557]]

those provisions of the proposed 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.).
    On November 16, 1999, OSM solicited EPA's concurrence and comments 
on the proposed amendment (Administrative Record No. PA-864.03). EPA 
responded on November 29, 1999, (Administrative Record No. PA 846.05) 
by stating it had no specific comments.

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 November 8, 1999.
    As noted in section III. B. above, the Director is approving 
incorporation of the reference to Sec. 89.34 at 86.81(a)(2)(iii)(C) and 
86.81(a)(2)(iv)(C) concerning fundable program services to the extent 
that Pennsylvania implements this provision consistent with the SOAP 
funding provisions of SMCRA section 507(c)(1)(A) and the implementing 
regulations at 30 CFR 795.9(b)(1). The Director is not approving the 
incorporation of this references into subsections 86.81(a)(2)(iii)(C) 
and 86.81(a)(2)(iv)(C) 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)(A) of SMCRA or 30 CFR 795.9(b)(1).
    Also noted in III. B. above there are several regulatory citations 
in the 1995 SOAP approval that OSM felt were beyond the scope of 
services authorized by 30 CFR 795 that still remain in this amendment 
including: 25 PA Code Secs. 87.41, 87.42(1), 88.21, and 88.22(1). These 
requirements are not referenced in federal regulations as being 
authorized for payment under the SOAP program. The Director is 
approving subsections 86.81(a)(2)(iii)(A) and (B) to the extent that 
Pennsylvania implements these provisions consistent with the SOAP 
funding provisions of SMCRA section 507(c) and the implementing 
regulations at 30 CFR 795.9(b). The Director is not approving proposed 
subsections 86.81(a)(2)(iii)(A) and (B) 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).
    Finally, also discussed in III. B. above, OSM noted in the 1995 
SOAP amendment approval that 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. The references to public parks 
remain in subsections 86.81(a)(2)(iv)(A), (B) and (C). The Director is 
approving the reference of Secs. 87.77, 88.56 and 89.38 into 
subsections 86.81(a)(2)(iv)(A), (B) and (C) to the extent that 
Pennsylvania implements these provisions consistent with the SOAP 
funding provisions of SMCRA section 507(c)(1)(D) and the implementing 
regulations at 30 CFR 795.9(b)(4). The Director is not approving the 
incorporation of these references into subsections 86.81(a)(2)(iv)(A), 
(B) and (C) 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)(D) of 
SMCRA or 30 CFR 795.9(b)(4).
    The Federal regulations at 30 CFR 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 
oversight of the Pennsylvania program, the Director will recognize only 
the statutes, regulations and other materials approved by OSM, 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 [*19820] (OMB) under Executive Order 12866 (Regulatory Planning 
and Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (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 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 
corresponding 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

[[Page 15558]]

impact, the Department relied upon the date and assumptions for the 
corresponding federal regulations.

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.

Allen D. Klein,
Regional Director, Appalachian Regional Coordinating 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. Section 938.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 938.15  Approval of Pennsylvania regulatory program amendments.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
 
      *                  *                   *                   *                   *                   *
                                                           *
November 8, 1999.....................  March 23, 2000.........  25 PA Code Secs.  86.80, 86.81, 86.82, 86.83,
                                                                 86.84, 86.85, 86.86 (deleted), 86.87, 86.91
                                                                 (deleted), 86.92, 86.94, 86.95 (deleted). Note:
                                                                 The incorporation of the reference to Sec.
                                                                 89.34 at 86.81(a)(2)(iii)(C) and
                                                                 86.81(a)(2)(iv)(C) is approved to the extent
                                                                 that Pennsylvania implements this provision
                                                                 consistent with the SOAP funding provisions of
                                                                 SMCRA section 507(c)(1)(A) and the implementing
                                                                 regulations at 30 CFR 795.9(b)(1). The
                                                                 incorporation of this reference into
                                                                 subsections 86.81(a)(2)(iii)(C) and
                                                                 86.81(a)(2)(iv)(C) is not approved to the
                                                                 extent that the proposed subsections would
                                                                 authorized the expenditure of Pennsylvania SOAP
                                                                 funds under the subsections listed above for
                                                                 services that are not fundable under section
                                                                 507(c)(1)(A) of SMCRA or 30 CFR 795.9(b)(1).
                                                                25 PA Code 86.81(a)(2)(iii) is approved to the
                                                                 extent that the SOAP funds are not used to fund
                                                                 the activities required under 25 PA Code Secs.
                                                                 87.41 and 87.42(1) or Secs.  88.21 and
                                                                 88.22(1).
                                                                The reference of Secs.  87.77, 88.56 and 89.38
                                                                 (regarding archaeological and historic
                                                                 information) into subsections
                                                                 86.81(a)(2)(iv)(A), (B) and (C) is approved to
                                                                 the extent that Pennsylvania implements these
                                                                 provisions consistent with the SOAP funding
                                                                 provisions of SMCRA section 507(c)(1)(D) and
                                                                 the implementing regulations at 30 CFR
                                                                 795.9(b)(4). The incorporation of these
                                                                 references (regarding public parks) into
                                                                 subsections 86.81(a)(2)(iv)(A), (B) and (C) is
                                                                 not approved to the extent that the proposed
                                                                 subsections would authorized the expenditure of
                                                                 Pennsylvania SOAP funds under the subsections
                                                                 listed above for services that are not fundable
                                                                 under section 507(c)(1)(D) of SMCRA or 30 CFR
                                                                 795.9(b)(4).
----------------------------------------------------------------------------------------------------------------

Sec. 938.16  [Amended]

    3. Section 938.16 is amended by removing and reserving paragraph 
(000).

[FR Doc. 00-7207 Filed 3-22-00; 8:45 am]
BILLING CODE 4310-05-P