Pennsylvania Regulatory Program

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

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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).

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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