16788 Federal Register / Vol. 60, No. 63 / Monday, April 3, 1995 / Rules and Regulations

(8 U.S.C. 1184) and paragraphs (a) (2)

and (e) of this section’’; and

5. In paragraph (d)(3), by inserting the

word ‘‘solely’’ after the word ‘‘waiver’’,

and by inserting the following at the end

of said paragraph: ‘‘However, an alien

who is a graduate of a medical school

pursuing a program in medical

education or training may obtain a

waiver of such two-year foreign

residence requirements if said alien

meets the requirements of section 214(k)

of the Immigration and Nationality Act

(8 U.S.C. 1184) and paragraphs (a) (2)

and (e) of this section’’; and

6. By redesignating paragraphs (e), (f),

and (g) as (f), (g), and (h), respectively;

and

7. By inserting a new paragraph (e) as

follows:

§ 514.44 Two-year home-country physical

presence requirement.

* * * * *

(e) Requests for waiver from a State

Department of Public Health, or its

equivalent, on the basis of Public Law

103–416.

(1) Pursuant to Public Law 103–416,

in the case of an alien who is a graduate

of a medical school pursuing a program

in graduate medical education or

training, a request for a waiver of the

two-year home-country physical

presence requirement may be made by

a State Department of Public Health, or

its equivalent. Such waiver shall be

subject to the requirements of section

214(k) of the Immigration and

Nationality Act (8 U.S.C. 1184) and this

§ 514.44.

(2) With respect to such waiver under

Public Law 103–416, the Director of the

United States Information Agency is to

be furnished with a statement in writing

that the country to which such alien is

required to return has no objection to

such waiver. The no objection statement

shall be furnished to the Director in the

manner and form set forth in paragraph

(d) of this section and, additionally,

shall bear a notation that it is being

furnished pursuant to Public Law 103–

416.

(3) The State Department of Public

Health, or equivalent agency, shall

include in the waiver application the

following:

(A) A completed ‘‘Data Sheet.’’ Copies

of blank data sheets may be obtained

from the Agency’s Exchange Visitor

Program office.

(B) A letter from the Director of the

designated State Department of Public

Health, or its equivalent, which

identifies the foreign medical graduate

by name, country of nationality or last

residence, and date of birth, and states

that it is in the public interest that a

waiver of the two-year home residence

requirement be granted;

(C) An employment contract between

the foreign medical graduate and the

health care facility named in the waiver

application, to include the name and

address of the health care facility, and

the specific geographical area or areas in

which the foreign medical graduate will

practice medicine. The employment

contract shall include a statement by the

foreign medical graduate that he or she

agrees to meet the requirements set forth

in Section 214(k) of the Immigration and

Nationality Act. The employment

contract shall be valid for at least three

years and the geographical areas of

employment shall only be in areas,

within the respective state, designated

by the Secretary of Health and Human

Services as having a shortage of health

care professionals;

(D) Evidence establishing that the

geographic area or areas in the state in

which the foreign medical graduate will

practice medicine are areas which have

been designated by the Secretary of

Health and Human Services as having a

shortage of health care professionals.

(E) Copies of all forms IAP–66 issued

to the foreign medical graduate seeking

the waiver;

(F) A copy of the foreign medical

graduate’s curriculam vitae;

(G) A copy of the statement of no

objection from the foreign medical

graduate’s country of nationality or last

residence; and,

(H) Because of the numerical

limitations on the approval of waivers

under Public Law 103–416, i.e., no more

than twenty waivers for each State each

fiscal year, each application from a State

Department of Public Health, or its

equivalent, shall be numbered

sequentially, beginning on October 1 of

each year.

(4) The Agency’s Waiver Review

Branch shall review the program,

policy, and foreign relations aspects of

the case and forward its

recommendation to the Commissioner.

Except as set forth in § 514.44(g)(4)(i),

the recommendation of the Waiver

Review Branch shall constitute the

recommendation of the Agency.

* * * * *

8. In newly designated paragraph

(g)(4)(i), by inserting ‘‘(or, in the case of

an alien who is a graduate of a medical

school pursuing a program in graduate

medical education or training, pursuant

to the request of a State Department of

Public Health, or its equivalent)’’ after

‘‘interested United States Government

agencies.’’

[FR Doc. 95–7922 Filed 3–31–95; 8:45 am]

BILLING CODE 8230–01–M

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.

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.
Federal Register / Vol. 60, No. 63 / Monday, April 3, 1995 / Rules and Regulations 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

consequences.

30 CFR

795.9(b)(1).

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 sitespecific 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.
16790 Federal Register / Vol. 60, No. 63 / Monday, April 3, 1995 / Rules and Regulations

30 CFR 795.9(b)(3) provides for the

funding of the development of crosssection 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.
Federal Register / Vol. 60, No. 63 / Monday, April 3, 1995 / Rules and Regulations 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
16792 Federal Register / Vol. 60, No. 63 / Monday, April 3, 1995 / Rules and Regulations

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
Federal Register / Vol. 60, No. 63 / Monday, April 3, 1995 / Rules and Regulations 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:

§ 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 § 938.16, paragraph (ooo) is

added to read as follows:

§ 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

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 162 and 165

[CGD11–94–007]

RIN 2115–AE84

Regulated Navigation Area; San

Francisco Bay Region, CA

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

SUMMARY: The Coast Guard is

establishing regulated navigation areas

(RNAs) within the San Francisco Bay

Region in the waters of the Golden Gate,

Central Bay, Lower Bay, San Pablo Bay

and Carquinez Strait. This action is

necessary due to vessel congestion in

areas where maneuvering room is

limited. These RNAs will increase

navigation safety in the San Francisco

Bay Region by organizing traffic flow

patterns; reducing meeting, crossing,

and overtaking situations between large

vessels in constricted channels; and

limiting vessel speed. This rulemaking

will also remove existing regulatory

language relating to the Pinole Shoal

Channel which with be incorporated

into the RNA.

EFFECTIVE DATE: This rule is effective on

May 3, 1995.

FOR FURTHER INFORMATION CONTACT:

Commander Dennis Sobeck,

Commanding Officer, Vessel Traffic

Service San Francisco, San Francisco;

telephone (415) 556–2950.

SUPPLEMENTARY INFORMATION:

Drafting Information

The principal persons involved in

drafting this document are Commander

Dennis Sobeck, Project Manager, Vessel

Traffic Service San Francisco, and

Lieutenant Commander C. M. Juckniess,

Project Counsel, Eleventh Coast Guard

District Legal Office.

Regulatory History

On December 12, 1994, the Coast

Guard published a notice of proposed

rulemaking for these regulations in the

Federal Register (59 FR 63947). The

comment period ended February 10,

1995. The Coast Guard received four

letters commenting on the proposal. A

public hearing was not requested and no

hearing was held.

Background and Purpose

In 1972, the Coast Guard, with input

from various members of the San

Francisco Bay maritime community,

established voluntary vessel traffic

routing measures for the San Francisco

Bay region that consisted of traffic lanes

in the Golden Gate and the Central Bay

extending to Pinole Shoal Channel;

separation zones; a precautionary area

east of Alcatraz Island; and an Oakland

Harbor Limited Traffic Area.

Compliance with these routing

measures was voluntary and intended

for use by vessels 300 gross tons or

greater.

In 1991, the precautionary area east of

Alcatraz Island was expanded to

include the water area between the San

Francisco waterfront and Treasure

Island, replacing the traffic lanes in that

area. A deep water route was

established north of Harding Rock.

In 1993, the Coast Guard, with input

from the Harbor Safety Committee of the

San Francisco Bay Region, modified the

voluntary traffic routing measures to

better conform to International Maritime

Organization (IMO) traffic routing

standards. The 1993 modification added