[Federal Register Volume 60, Number 103 (Tuesday, May 30, 1995)]
[Proposed Rules]
[Pages 28069-28073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13157]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[IN-122, IN-123, IN-124]


Indiana Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: OSM is announcing receipt of three proposed amendments to the 
Indiana regulatory program (hereinafter [[Page 28070]] referred to as 
the ``Indiana program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). All three proposed amendment packages 
revise the Indiana Administrative Code (IAC) regulations. The first 
amendment package amends the Indiana program at both 310 IAC 0.6 and 
310 IAC 12 by revising the response to petitions for review and the 
suspension or revocation of permits under Indiana law at IC 13-4.1. The 
second amendment revises revegetation standards for success for 
nonprime farmland for surface and underground coal mining and 
reclamation operations under IC 13-4.1. The third amendment revises the 
Small Operator Assistance Program (SOAP) regulations. The proposed 
amendments are intended to revise the Indiana program to be consistent 
with the corresponding Federal regulations. The amendments also 
incorporate changes desired by the State that address various parts of 
the State regulations.

DATES: Written comments must be received by 4 p.m., E.D.T., June 29, 
1995. If requested, a public hearing on the proposed amendment will be 
held on June 26, 1995. Requests to speak at the hearing must be 
received by 4 p.m., E.D.T. on June 14, 1995.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand delivered to Roger W. Calhoun, Director, Indianapolis 
Field Office at the first address listed below.
    Copies of the Indiana program, the proposed amendments, a listing 
of any scheduled public hearings, and all written comments received in 
response to this document will be available for public review at the 
addresses listed below during normal business hours, Monday through 
Friday, excluding holidays. Each requester may receive one free copy of 
the proposed amendments by contacting OSM's Indianapolis Field Office.

Roger W. Calhoun, Director, Indianapolis Field Office, Office of 
Surface Mining Reclamation and Enforcement, Minton-Capehart Federal 
Building, Room 301, Indianapolis, Indiana 46204, telephone: (317) 226-
6166.
Indiana Department of Natural Resources, 402 West Washington Street, 
Room C256, Indianapolis, Indiana 46204, telephone: (317) 232-1547.

FOR FURTHER INFORMATION CONTACT:
Roger W. Calhoun, Director, Indianapolis Field Office, Telephone: (317) 
226-6166.

SUPPLEMENTARY INFORMATION: 

I. Background on the Indiana Program

    On July 29, 1982, the Secretary of the Interior conditionally 
approved the Indiana program. Background information on the Indiana 
program, including the Secretary' findings, the disposition of 
comments, and the conditions of approval can be found in the July 26, 
1982, Federal Register (47 FR 32107). Subsequent actions concerning the 
conditions of approval and program amendments can be found at 30 CFR 
914.10, 914.15, and 914.16.

II. Discussion of the Proposed Amendments

A. Indiana Program Amendment Number 95-1

    By letter dated May 3, 1995 (Administrative Record No. IND-1459), 
the Indiana Department of Natural Resources (IDNR) submitted to OSM 
State program amendment number 95-1 consisting of revisions to 310 IAC 
0.6-1-5 and 310 IAC 12-6-6.5 concerning the response to petitions for 
review and the suspension or revocation of permits under IC 13-4.1.
310 IAC 0.6-1-5  Petition for Review; Response
    Indiana proposes several nonsubstantive wording changes, subsection 
and regulation reference changes, and paragraph notation changes to 
reflect the organizational changes made throughout this section.
    Indiana is proposing to amend subsection (c) to require the 
director of IDNR or a delegate to issue an order ``of permit suspension 
or revocation pursuant to IC 13.4.1-11-6'' in place of an order ``to 
show cause why the permit should not be revoked or suspended.'' In 
conjunction with this proposed change, Indiana proposes to amend 
subsections (c), (c)(2), (d), (e), (e)(1)(A), (e)(4), (f), and existing 
(g)(2) [proposed (h)(2)] by changing existing language from ``an order 
to show cause'' to ``an order of permit suspension or revocation.''
    At subsection (d), Indiana is clarifying that an order of permit 
suspension or revocation is governed by IC 4-21.5-3-6.
    Indiana is proposing to amend the language of subsection (e) to 
allow a permittee who desires to contest an order of permit suspension 
or revocation to file ``a petition for review pursuant to IC 4-21.5-3-
7'' rather than filing ``an answer specifically denying those 
allegations of the order to show cause which the permittee desires to 
contest.'' In conjunction with this proposed revision, Indiana proposes 
to amend subsections (f), (g)(1), existing (g)(3) [proposed (i)(2)], 
and existing (h)(3) [proposed (k)(2)] by changing the existing language 
from ``an answer'' to ``a petition for review.''
    Indiana is proposing to revise subsection (f) to read as follows:
    If a petition for review is not filed by the permittee under 
subsection (e), the order of permit suspension or revocation shall 
become an effective and final order of the commission without a 
proceeding pursuant to IC 13-4.1-11-6(b).
    Indiana is proposing to revise the existing language at subsection 
(g)(1) and to add new provisions at subsections (g)(1)(A), (g)(1)(B), 
(g)(1)(B)(A) and (B), and new (g)(2) as follows:
    (g)(1) If a petition for review is filed by the permittee under 
subsection (e), and a hearing on the order is desired by the permittee, 
the matter shall be assigned to an administrative law judge for a 
proceeding under IC 4-21.5-3. The proceeding is commenced when the 
permittee files a petition for review under subsection (e). In a 
hearing conducted under this section, the director has the burden of 
going forward with evidence demonstrating that the permit in question 
should be suspended or revoked. This burden shall be satisfied if the 
director establishes a prima facie case that: (A) A pattern of 
violations of any requirements of IC 13-4.1, 310 IAC 12, or any permit 
conditions required under IC 13-4.1 or 310 IAC 12 exists or has 
existed; and (B) the violations were: (A) willfully caused by the 
permittee; or (B) caused by the unwarranted failure of the permittee to 
comply with any requirements of IC 13-4.1, 310 IAC 12, or any permit 
conditions required under IC 13-4.1 or 310 IAC 12. For the purposes of 
this subsection, the unwarranted failure of the permittee to pay any 
fee required under IC 13-4.1 or 310 IAC 12 constitutes a pattern of 
violations and requires the issuance of an order of permit suspension 
or revocation. (2) If the director demonstrates that the permit in 
question should be suspended or revoked, the permittee has the ultimate 
burden of persuasion to show cause why the permit should not be 
suspended or revoked. A permittee may not challenge the fact of any 
violation that is the subject of a final order of the director.
    Indiana is proposing to relocate the provisions of existing 
subsections (g)(2) and (g)(2) (A) through (D) to new subsections (h) 
and (h) (1) through (4); to amend the provisions of new subsection (h) 
by requiring the administrative law judge to issue 
[[Page 28071]] findings and a written recommendation to the commission 
``to affirm, modify, or vacate the order of permit suspension or 
revocation''; and to relocate the reference to ``the administrative law 
judge'' to the last sentence in new subsection (h) and to delete this 
reference from new subsections (h)(1) through (4).
    Indiana is proposing to move the provisions of subsection (g)(3) to 
new subsection (i).
    Indiana is proposing to relocate the provisions of existing 
subsection (g)(4) to new subsection (j) and to amend the provisions by 
deleting the first sentence.
    In response to a required amendment at 30 CFR 914.16(ff), Indiana 
proposes the deletion of the provision immediately following existing 
subsection (g)(4)(B). This provision allows issuance of the 
administrative law judge's findings and nonfinal order within sixty 
(60) days after conclusion of a permit suspension or revocation 
hearing.
    Existing subsection (h) is proposed to be moved to new subsection 
(k) and the following revisions are proposed. At new subsection (k), 
the language ``the director issues a recommended order under subsection 
(f) or'' is deleted; the final order of the commission shall be entered 
within ``forty-five (45)'' days rather than ``fifty (50)'' days; and 
the language ``director's recommended order or the'' is deleted. The 
language in existing subsection (h)(1) ``ninety (90) days following 
receipt of the order to show cause by the permittee, where the 
permittee does not comply with the requirements of subsection (c)'' is 
deleted.
310 IAC 12-6-6.5  Suspension or Revocation of Permits
    Indiana is proposing to amend the language of subsection (a) to 
require the director of IDNR to issue ``to the permittee an order of 
permit suspension or revocation'' in place of ``an order to the 
permittee requiring the permittee to show cause why the permit and a 
right to mine under IC 13-4.1 should not be suspended or revoked.''
    At subsection (c), Indiana is proposing to revise the language 
which requires the director to issue ``a show cause order as provided 
in 310 IAC 0.6-1-5(c)'' by replacing it with language which requires 
the director to issue ``an order of permit suspension or revocation as 
provided in 310 IAC 0.6-1-5. In conjunction with the above revisions, 
Indiana is proposing to amend subsections (d), (e), and (g) by changing 
the type of order from ``show cause order'' to ``order of permit 
suspension or revocation'' and by revising regulation references.
    At subsection (f), Indiana is changing the phrase ``[i]f the 
committee suspends or revokes a permit'' to ``[i]f a permit is 
suspended or revoked.''

B. Indiana Program Amendment Number 95-2

    By letter dated May 3, 1995 (Administrative Record Number IND-
1460), the IDNR submitted program amendment number 95-2. This amendment 
revises 310 IAC 12-5-64.1 and 310 IAC 12-5-128.1 pertaining to 
revegetation standards for success for nonprime farmland for surface 
and underground coal mining operations under IC 13-4.1.
310 IAC 12-5-64.1+  (Surface Mining) and 12-5-128.1  (Underground 
Mining) Revegetation; Standards for Success for Nonprime Farmland
    Since the revisions being proposed for surface mining at Sec. 12-5-
64.1 are identical to those being proposed for underground mining at 
Sec. 12-5-128.1, they will be combined for ease of discussion.
    Indiana proposes paragraph notation changes to reflect the 
organizational changes made throughout subsections (c).
    Indiana is, also, proposing to revise subsections (c) by correcting 
its reference to the ``Soil Conservation Service'' to the ``Natural 
Resources Conservation Service'' throughout.
    Subsections (c)(3) concern the production success standards for 
revegetated pastureland areas. Indiana is proposing to relocate the 
provision in existing subsections (c)(4), which requires that if the 
current Natural Resources Conservation Service predicted yield by soil 
map units is used to determine production of living plants then the 
standard for success shall be a weighted average of the predicted 
yields for each unmined soil type which existed on the permit areas at 
the time the permit was issued, to subsections (c)(3)(B).
    Indiana is proposing to delete the existing provision in 
subsections (c)(3)(C) for determining production of living plants on 
pastureland and is proposing to add the following provision.
    (C) A target yield determined by the following formula: Target 
Yield=NRCS Target Yield  x  (CCA/10 Year CA) where: NRCS Target 
Yield=the average yield per acre, as predicted by the Natural Resources 
Conservation Service, for the crop and the soil map units being 
evaluated. The most current yield information at the time of permit 
issuance shall be used, and shall be contained in the appropriate 
sections of the permit application. CCA=the county average for the crop 
for the year being evaluated as reported by the United States 
Department of Agriculture crop reporting service, the Indiana 
Agricultural Statistics Service. 10 Year CA=the ten (1) Year Indiana 
Agricultural Statistics Service county average, consisting of the year 
being evaluated and the nine (9) preceding years.
    Indiana is proposing to add new subsections (c)(3)(D) which allow 
other methods approved by the director of IDNR to be used in 
determining success of production of living plants on the revegetated 
area.
    Existing subsections (c)(6) are redesignated subsections (c)(5). 
These subsections concern the success standards for production on 
revegetated cropland areas. Indiana is proposing to relocate the 
provision in existing subsections (c)(7), which requires that if the 
current Natural Resources Conservation Service predicted yield by soil 
map units is used to determine production of living plants then the 
standard for success shall be a weighted average of the predicted 
yields for each unmined soil type which existed on the permit areas at 
the time the permit was issued, to redesignated subsections (c)(5)(B).
    Indiana is proposing to delete the provision in existing 
subsections (c)(6)(C) for determining production of living plants on 
cropland and is proposing to add the following provision to 
redesignated subsections (c)(5)(C).
    (C) A target yield determined by the following formula: Target 
Yield=CCA  x  (NRCSP/NRCSC) where; CCA=the county average for the crop 
for the year being evaluated as reported by the United States 
Department of Agriculture crop reporting service, the Indiana 
Agricultural Statistics Service. NRCSP=the weighted average of the 
current Natural Resources Conservation Service predicted yield for each 
croppable, unmined soil which existed on the permit at the time the 
permit was issued. NRCSC=the weighted average of the current Natural 
Resources Conservation Service predicted yield for each croppable, 
unmined soil which is shown to exist in the county on the most current 
county soil survey. A croppable soil is any soil which the Natural 
Resources Conservation Services has defined as being in capability 
class I, II, III, or IV.
    Indiana is proposing to add new subsections (c)(5)(D) which would 
allow other methods approved by the director [[Page 28072]] of IDNR to 
be used in determining success of production of living plants on 
revegetated areas.
    Indiana is proposing to move from existing subsections (c)(7) to 
new subsections (c)(5)(E) the provision which requires that once the 
method for establishing the standards has been selected, it may not be 
modified without the approval of the director.

C. Indiana Program Amendment Number 95-3

    By letter dated May 3, 1995 (Administrative Record Number IND-
1461), Indiana submitted State program amendment number 95-3. This 
amendment revises the SOAP regulations at 310 IAC 12-3 to more closely 
reflect the latest changes to 30 CFR Part 795.
310 IAC 12-3-130  Small Operator Assistance; Definitions
    Indiana proposes to add two new definitions to this section as 
follows:
    Program administrator means the state or federal official within 
the regulatory authority who has the authority and responsibility for 
overall management of the Small Operator Assistance Program; and
    Qualified laboratory means a designated public agency, private 
firm, institution, or analytical laboratory that can provide the 
required determination of probable hydrologic consequences or statement 
of results of test boring or core samplings or other services as 
specified at 30 IAC 12-3-133 under the Small Operator Assistance 
Program and that meets the standards of 310 IAC 12-3-134.
310 IAC 12-3-131  Small Operator Assistance; Eligibility for Assistance
    Indiana is proposing the following revisions to its regulations 
pertaining to eligibility for assistance.
    In the introductory sentence of Sec. 12-3-131, the language ``who 
establishes the following'' is replaced with the language ``if he or 
she.''
    At Sec. 12-3-131(1), the language ``[a]n intention'' is replaced by 
the word ``intends.''
    At Sec. 12-3-131(2), the criteria for eligibility for assistance is 
revised by providing that the probable total attributed annual 
production for all locations will not exceed three hundred thousand 
(300,000) tons.
    At Sec. 12-3-131(2)(B) and (C), the percentage of ownership of 
applicant is changed from five percent to ten percent with respect to 
the pro rata share which ownership will play in determining attributed 
coal production.
310 IAC 12-3-132.5  Small Operator Assistance; Application Approval and 
Notice
    Indiana is proposing to add the following new Sec. 12-3-132.5 
pertaining to application approval and notice.
    (a) If the program administrator finds the applicant eligible, he 
or she shall inform the applicant in writing that the application is 
approved. (b) If the program administrator finds the applicant 
ineligible, he or she shall inform the applicant in writing that the 
application is denied and shall state the reasons for denial.
310 IAC 12-3-133  Small Operator Assistance; Program Services and Data 
Requirements
    Indiana is proposing to amend 310 IAC 12-3-133 as follows:
    At subsection (a), the existing language is deleted and the 
following language is added.
    (a) To the extent possible with available funds, the program 
administrator shall select and pay a qualified laboratory to make the 
determination and statement and provide other services referenced in 
paragraph (b) of this section for eligible operators who request 
assistance. Data collection and analysis may proceed concurrently with 
the development of mining and reclamation plans by the operator.
    At subsection (b), the existing language is revised to read as 
follows:
    (b) The program administrator shall determine the data needed for 
each applicant or group of applicants. Data collected and the results 
provided to the program administrator shall be sufficient to satisfy 
the requirements for: (1) The determination of the probable hydrologic 
consequences of the surface mining and reclamation operation in the 
proposed permit area and adjacent areas, including the engineering 
analyses and designs necessary for the determination in accordance with 
310 IAC 12-3-47 and 310 IAC 12-3-81, and any other applicable 
provisions of the Act; (2) the drilling and statement of the results of 
test borings or core samplings from the proposed permit area, in 
accordance with 310 IAC 12-331 and 310 IAC 12-369 and any other 
applicable provisions of the Act; (3) the development of cross-section 
maps and plans required by 310 IAC 12-3-39 and 310 IAC 12-3-76; (4) the 
collection of archaeological and historic information and related plans 
required by 310 IAC 12-3-29, 310 IAC 12-3-67, 310 IAC 12-3-38, 310 IAC 
12-3-75, and any other archaeological and historic information required 
by the regulatory authority; (5) pre-blast surveys required by 310 IAC 
12-3-43; and (6) the collection of site-specific resources information, 
the production of protection and enhancement plans for fish and 
wildlife habitats required by 310 IAC 12-3-46.5 and 310 IAC 12-3-68.5 
and information and plans for any other environmental values required 
by the regulatory authority under the Act.
310 IAC 12-3-134  Small Operator Assistance; Qualified Laboratories
    Indiana proposed several revisions to subsections (a) and (b). 
These subsections, as revised, read as follows:
    (a) To be designated a qualified laboratory, a firm shall 
demonstrate that it--(1) Is staffed with experienced, professional 
personnel in the fields applicable to the work to be performed; (2) has 
adequate space for material preparation, cleaning, and sterilizing 
equipment, and has stationary equipment, storage, and space to 
accommodate work loads during peak periods; (3) meets applicable 
federal or state safety and health requirements; (4) has analytical, 
monitoring and measuring equipment capable of meeting the applicable 
standards; (5) has the capability of collecting necessary field samples 
and making hydrologic field measurements and analytical laboratory 
determinations by acceptable hydrologic, geologic, or analytical 
methods in accordance with the requirements of 310 IAC 12-3-30 through 
310 IAC 12-3-33, 310 IAC 12-3-47, 310 IAC 12-3-68 through 310 IAC 12-3-
71, and any other applicable provisions of the ACT. Other appropriate 
methods or guidelines for data acquisition may be approved by the 
program administrator; and (6) has the capability of performing 
services for either the determination or statement referenced in 310 
IAC 12-3-133.
    (b) Subcontractors may be used to provide some of the required 
services provided their use is identified at the time a determination 
is made that a firm is qualified and they meet requirements specified 
by the program administrator.
310 IAC 12-3-135  Small Operator Assistance; Applicant Liability
    Indiana is proposing to redesignate the introductory paragraph of 
Sec. 12-3-135 as subsection (a), to revise the existing applicant 
reimbursement requirements in subdivisions (1) through (4), and to add 
a waiver of reimbursement provision at subsection (b). Revised 
subdivisions (1) through (4) and new subsection (b) reads as follows:
    (a)(1) submits information, fails to submit a permit application 
within one (1) year from the date of receipt of the 
[[Page 28073]] approved laboratory report, or fails to mine after 
obtaining a permit; (2) the program administrator finds that the 
operator's actual and attributed annual production of coal for all 
locations exceeds three hundred thousand (300,000) tons during the 
twelve (12) months immediately following the date on which the operator 
is issued the surface coal mining and reclamation permit; (3) the 
permit is sold, transferred, or assigned to another person and the 
transferee's total actual and attributed production exceeds the three 
hundred thousand (300,000) ton production limit during the twelve (12) 
months immediately following the date on which the permit was 
originally issued. Under this subdivision, the applicant and its 
successor are jointly and severally obligated to reimburse the 
regulatory authority; or (4) the applicant does not begin mining within 
six (6) months after obtaining the permit.
    (b) The program administrator may waive the reimbursement 
obligation if he or she finds that the applicant at all times acted in 
good faith.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is 
seeking comments on whether the proposed amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15. If the amendment 
is deemed adequate, it will become part of the Indiana program.

Written Comments

    Written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of the 
commenter's recommendations. Comments received after the time indicated 
under DATES or at locations other than the Indianapolis Field Office 
will not necessarily be considered in the final rulemaking or included 
in the Administrative Record.

Public Hearing

    Persons wishing to speak at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., 
E.D.T. on June 14, 1995. The location and time of the hearing will be 
arranged with those persons requesting the hearing. If no one requests 
and opportunity to testify at the public hearing, the hearing will not 
be held.
    Filing of a written statement at the time of the hearing is 
requested as it will greatly assist the transcriber. Submission of 
written statements in advance of the hearing will allow OSM officials 
to prepare adequate responses and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to speak have been heard. Persons in the audience who 
have not been scheduled to speak, and who wish to do so, will be heard 
following those who have been scheduled. The hearing will end after all 
persons scheduled to speak and persons present in the audience who wish 
to speak have been heard.
    Any disabled individual who has need for a special accommodation to 
attend a public hearing should contact the individual listed under FOR 
FURTHER INFORMATION CONTACT.

Public Meeting
    If only one person requests an opportunity to speak at a hearing, a 
public meeting, rather than a public hearing, may be held. Persons 
wishing to meet with OSM representatives to discuss the proposed 
amendment may request a meeting by contacting the person listed under 
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the 
public and, if possible, notices of meetings will be posted at the 
locations listed under ADDRESSES. A written summary of each meeting 
will be made a part of the Administrative Record.

IV. 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 or 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 to 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 OSM will be implemented by the State. In making 
the determination as to whether this rule would have a significant 
economic impact, the Department relief upon the data and assumptions 
for the corresponding Federal regulations.

List of Subjects in 30 CFR Part 914

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 23, 1995.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 95-13157 Filed 5-26-95; 8:45 am]
BILLING CODE 4310-05-M