[Federal Register Volume 62, Number 198 (Tuesday, October 14, 1997)]
[Rules and Regulations]
[Pages 53232-53234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27065]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-241; Amendment Number 74]


Ohio Regulatory Program

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

ACTION: Final rule; approval of amendments and removal of condition of 
program approval.

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SUMMARY: OSM is approving a proposed amendment to the Ohio regulatory 
program (hereinafter referred to as the ``Ohio program'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The 
proposed amendment consists of revisions to section 1501:13-6-03 of the 
Ohio Administrative Code (OAC) dealing with the Small Operator 
Assistance Program (SOAP). The amendment is intended to revise the Ohio 
program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: October 14, 1997.

FOR FURTHER INFORMATION CONTACT:
George Rieger, Field Branch Chief, Appalachian Regional Coordinating 
Center, Office of Surface Mining Reclamation and Enforcement, 3 Parkway 
Center, Pittsburgh, PA 15220, Telephone: (412) 937-2153.

SUPPLEMENTARY INFORMATION: 

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

I. Background on the Ohio Program

    On August 16, 1982, the Secretary of the Interior conditionally 
approved the Ohio program. Background information on the Ohio program, 
including the Secretary's findings, the disposition of comments, and 
the conditions of approval can be found in the August 10, 1982, Federal 
Register (47 FR 34688). Subsequent actions concerning conditions of 
approval and program amendments can be found at 30 CFR 935.11, 935.15, 
and 935.16.

II. Submission of the Proposed Amendment

    By letter dated October 3, 1996, (Administrative Record No. OH-
2170-00) Ohio submitted a proposed amendment to its program regarding 
its SOAP pursuant to SMCRA. Ohio submitted the proposed amendment at 
its own initiative. OSM announced receipt of the proposed amendment in 
the October 18, 1996, Federal Register (61 FR 54373) and in the same 
document opened the public comment period and provided an opportunity 
for a public hearing on the adequacy of the proposed amendment. The 
public comment period closed on November 18, 1996. At the time of 
announcement, the proposed amendment was identified as [OH-240; 
Amendment Number 74]. Please note that the amendment is now identified 
as [OH-241; Amendment Number 74]. However, certain cross-references 
contained in the proposed amendments were inadvertently omitted or 
incorrect in that notice. These were conveyed to Ohio in a document 
dated April 14, 1997, Administrative Record No. OH-2170-07. Also, Ohio 
submitted corrections to its proposed amendments in documents dated 
April 1, 1997 and May 27, 1997 (Administrative Record Nos. OH-2170-06, 
and OH-2170-08, respectively). On June 24, 1997, Ohio submitted its 
revisions in response to the April 14, 1997 document (Administrative 
Record No. OH-2170-09). Therefore, OSM reopened the public comment 
period on the proposed amendments until August 4, 1997 as published in 
the July 18, 1997 Federal Register (62 FR 38509).

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. The amendment proposes numerous changes regarding 
both the title of the division and references to gender. Throughout the 
amendment, due to a name change of the division of reclamation, 
references to the ``division of reclamation'' are changed to the 
``division of mines and reclamation'' and references to ``he'' or 
``his'' are changed to ``he or she'' or ``his or hers'', respectively. 
These changes are non-substantive and are not specifically enumerated 
below. The changes proposed by Ohio in the revised amendment are 
discussed briefly below:

OAC 1501:13-6-03  Small Operator Assistance Program

    (a) Paragraph (A)(1) is amended by adding items for which qualified 
operators may request assistance. These include engineering analysis 
and designs necessary for the determination of probable hydrologic 
consequences added to subparagraph (A)(1)(a), and amending subparagraph 
(A)(1)(b) to include geologic drilling and statement of the results of 
physical and chemical analyses of test borings or core samples.
    (b) New subparagraphs (c)(d) (e) and (f) are added under paragraph 
(A)(1) to identify the development of cross-section maps and plans; the 
collection of archaeological information and other historical 
information and the preparation of plans necessitated thereby; pre-
blast surveys; and the collection of site specific resource information 
and production of protection and enhancement plans for fish and 
wildlife habitats and other environmental values required by the chief, 
respectively, as items for which a qualified operator may request 
assistance.
    There is no direct federal counterpart. However the proposed 
changes at (A)(1) are consistent with the corresponding Federal 
Regulations at 30 CFR 795.9(b)(1)-(b)(6), which describes the SOAP 
services and data requirements.
    (c) Paragraph (B) is amended by deleting subparagraphs (1) and (2) 
dealing with probable hydrologic consequences and results of test 
borings and core samplings which are added to Paragraph (A) of this 
amendment, and adding a statement that the services eligible are now 
under paragraph (A).
    The proposed change in paragraph (B) is non-substantive and the 
deletion of paragraphs (1) and (2) are not inconsistent with SMCRA or 
its corresponding Federal regulations, and do not render the State 
program any less effective than the federal regulations.
    (d) Paragraph (C)(2) is amended by substituting the Department of 
Natural

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Resources as an additional reference for production figure verification 
instead of the division of mines and the division of reclamation. The 
change in names is made due to the transfer of Division of Mines staff 
and responsibilities to the Department of Natural Resources. The 
Department of Natural Resources was assigned to the Division of 
Reclamation which was retitled the Division of Mines and Reclamation. 
Subparagraphs (C)(2)(a) and (C)(2)(b) are amended by changing the 
applicant ownership limit from ``more than a five percent limit'' to 
``ten percent or more'' limit.
    The proposed changes at (C)(2), (C)(2)(a), & (C)(2)(b) are not less 
effective than the federal regulations at 30 CFR 795.6(a)(2) (i) & 
(ii), which require applicant ownership limits of more than ten 
percent.
    (e) Subparagraph (D)(9) is amended by deleting the specific map 
scale references required for a topographic map and adding a reference 
to OAC 1501:13-4-09. New subparagraph (D)(9)(e) is added to require 
that such topographic maps also include any additional information 
required by the chief.
    The proposed changes in (D)(9) and (D)(9)(e) are no less effective 
than 30 CFR 795.7(e) because the map scale references and details 
required that were included in the deleted section are now included in 
the cross-referenced citation.
    (f) Paragraph (F)(2) is amended by deleting the heading ``specific 
provisions'' and adding the following: ``The data, analyses, and 
statements provided to the chief shall be sufficient to satisfy the 
requirements for:''. Subparagraphs (F)(2) (a) and (b) are amended to 
include engineering analyses and designs necessary for the probable 
hydrologic consequences determination, and the drilling and statement 
by a qualified laboratory of the result of test borings or core 
samplings, respectively. Subparagraph (F)(2)(b) is further amended by 
adding provisions for obtaining a waiver from the requirement. 
Previously existing subparagraph (F)(2)(c) pertaining to this waiver is 
deleted.
    Existing subparagraph (F)(2)(d) is re-numbered as (F)(3), and 
existing subparagraphs (F)(2) (e) and (f) are deleted.
    New subparagraphs (F)(2) (c), (d), (e) and (f) are added to 
identify the specific requirements that must be met for the development 
of cross-section maps and plans; the collection of archeological 
information and other historical information; pre-blast surveys; and 
the collection of site-specific resource information and production of 
protection and enhancement plans for fish and wildlife habitats and 
other environmental values, respectively.
    The proposed rules in (F) are found to be substantively identical 
to the corresponding Federal regulations at 30 CFR 795.9 (b)(1)-(b)(6). 
The deletion of subparagraphs (F)(2) (e) and (f) are found to be 
acceptable because the requirements for the submission of a hydrology 
map and a geologic cross-section required by these subparagraphs are 
now included in the newly added sections and/or cross-references now 
included in (F)(2)(c). The revision to paragraph (F)(2)(a) of OAC 
1501:13-6-03 also satisfies a required program amendment found at 30 
CFR 935.16(a)(3). In the January 13, 1997, Federal Register (62 FR 
1668), the Director required that Ohio amend ORC 1513.07(B)(4)(a)(i) or 
otherwise clarify that under the Small Operator's Assistance Program 
(SOAP), probably hydrologic consequences determinations include the 
engineering analyses and designs necessary for those determinations. 
The revision to paragraph (F)(2)(a) specifically adds this required 
language. Therefore, the Director is removing the required amendment at 
30 CFR 935.16(a)(3).

IV. Summary and Disposition of Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. One comment was 
received from the Ohio Historic Preservation Office in a letter dated 
February 24, 1997. The commenter stated that several times the new 
language refers to the collection of archaeological information, but 
does not refer to the National Historic Preservation Act review process 
which includes more than just archaeological sites. The Ohio Historical 
Preservation Office suggests that the rule language parallel the 
Section 106 review process at 36 CFR part 800. One of the changes made 
by Ohio to the proposed rules in one of its subsequent submissions is 
to add the words ``and historical'' after the word archaeological in 
sections OAC 1501:13-6-03(A)(1)(D) and OAC 1501:13-6-03(F)(2)(d). 
Additionally, the Director notes that OAC 1501:13-4-01(B) requires 
coordination of review and issuance of permits with other federal or 
state laws which includes the National Historic Preservation Act of 
1966 and that OAC 1501:13-5-01(A)(3) requires that a written 
notification of a permit application, renewal or revision be sent to 
all federal, state and local governmental agencies that have an 
interest in the area of the proposed operations. There are no SOAP 
operations that are not included in the permit application process. The 
program amendment does not propose to change any coordination that 
currently exists between OHPO and DMR concerning review of cultural and 
historical resources. No one requested an opportunity to speak at a 
public hearing, therefore no hearing was held.

Federal Agency Comments

    Pursuant to 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 Ohio program. The U.S. Army 
Corps of Engineers responded that the changes were satisfactory. The 
U.S. Department of Labor's Mine Safety and Health Administration 
acknowledged receipt of the proposed amendment and responded that no 
further action was anticipated. No other comments were received.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to 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.). 
Comments were requested from EPA, however they did not reply.

V. Director's Decision

    Based on the above finding(s), the Director approves the proposed 
amendment as submitted by Ohio on October 3, 1996 and modified in 
documents dated April 1, 1997, May 27, 1997, and June 24, 1997. 
(Administrative Record Nos. OH-2170-06, OH-2170-08, and OH-2170-09, 
respectively). The Director is also removing the condition of program 
approval at 30 CFR 935.16(a)(3) because this amendment now includes 
those requirements at paragraph (F)(2)(a) of OAC 1501:13-6-03. The 
requirement amendment was initially included in OH-204 published as a 
final rule in the January 13, 1997, Federal Register (62 FR 1668). The 
condition required an amendment that probable hydrologic consequences 
determinations include engineering analyses and designs necessary for 
those determinations.
    The Federal regulations at 30 CFR Part 935, codifying decisions 
concerning the Ohio program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment

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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.

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 12988

    The Department of the Interior has conducted the reviews required 
by section 2 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 impact, the Department relied upon the data 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 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 9, 1997.
Tim L. Dieringer,
Acting 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 935--OHIO

    1. The authority citation for part 935 continues to read as 
follows:

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

    2. Section 935.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 935.15  Approval of Ohio regulatory program amendments.

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   Original amendment submission date      Date of final publication              Citation/description          
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
October 3, 1996                           October 14, 1997...........  OAC 1501:13-6-03, (A)(1) (a) through (f),
                                                                        (B), (1), (2), (F)(2), (a) through (f), 
                                                                        (C)(2), (a), (b), (D)(9), (10), (11).   
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Sec. 935.16  Required regulatory program amendments.

    Section 935.16 is amended by deleting paragraph (a)(3).

[FR Doc. 97-27065 Filed 10-10-97; 8:45 am]
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