[Federal Register Volume 60, Number 217 (Thursday, November 9, 1995)]
[Rules and Regulations]
[Pages 56529-56531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27811]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 943
[SPATS No. TX-026-FOR]
Texas Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Notice of decision.
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SUMMARY: OSM is announcing its decision not to approve a proposed
amendment to the Texas regulatory program (hereinafter referred to as
the ``Texas program'') under the Surface Mining Control and Reclamation
Act of 1977 (SMCRA). Texas proposed a revision to its rules pertaining
to surface mining permit applications--minimum requirements for
information on environmental resources: cross sections, maps, and
plans. The amendment was intended to allow professional biologists to
prepare and certify cross sections, maps, and plans that are included
as part of the permit application.
EFFECTIVE DATE: November 9, 1995.
FOR FURTHER INFORMATION CONTACT:
Mr. Jack R. Carson, Acting Director, Tulsa Field Office, Office of
Surface Mining Reclamation and Enforcement, 5100 East Skelly Drive,
Suite 470, Tulsa, Oklahoma, 74135-6548, Telephone: (918) 581-6430.
SUPPLEMENTARY INFORMATION:
I. Background on the Texas 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 Texas Program
On February 16, 1980, the Secretary of the Interior conditionally
approved the Texas program. Background information on the Texas
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in the February
27, 1980, Federal Register (45 FR 12998). Subsequent actions concerning
the conditions of approval and program amendments can be found at 30
CFR 943.10, 943.15, and 943.16.
[[Page 56530]]
II. Submission of the Proposed Amendment
By letter dated August 31, 1995, (Administrative Record No. TX-
596), Texas submitted a proposed amendment to its program pursuant to
SMCRA. Texas submitted the proposed amendment at its own initiative.
Texas proposed to revise the Texas Coal Mining Regulations (TCMR) at
Sec. 779.137 pertaining to cross sections, maps, and plans included in
a surface mining permit application.
OSM announced receipt of the proposed amendment in the September
20, 1995, Federal Register (60 FR 48677), 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 October 20, 1995.
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.
Texas proposed a revision at TCMR 779.137(l) which would allow
professional biologists, as appropriate, to prepare and certify cross
sections, maps, and plans that are submitted as part of the surface
mining permit application. Currently the Texas program only allows
qualified registered professional engineers or professional geologists,
with assistance from experts in related fields such as land surveying
and landscape architecture, to prepare and certify cross sections,
maps, and plans.
Section 507(b)(14) of SMCRA, as amended on November 4, 1983, by
section 115, Pub. L. 98-146, 97 Stat. 938, requires that cross
sections, maps, or plans included in an application for a surface
mining and reclamation permit be prepared by or under the direction of
and certified by a qualified registered professional engineer, or
professional geologist, or qualified registered professional land
surveyor in any State which authorizes land surveyors to prepare and
certify such maps or plans, with assistance from experts in related
fields such as landscape architecture. The implementing Federal
regulations at 30 CFR 779.25(b), as amended on April 24, 1985 (50 FR
16194), also require that cross sections, maps, and plans included in a
permit application be prepared by or under the direction of and
certified by the same professions specified in section 507(b)(14) of
SMCRA. Thus under SMCRA and its implementing Federal regulations, only
professional engineers, geologists, and land surveyors may prepare and
certify cross sections, maps, and plans in surface mining and
reclamation permit applications.
Additionally, considering the Federal provisions under section
507(b)(14) of SMCRA and 30 CFR 779.25(b), Texas did not provide
adequate information and documentation to support its proposed
amendment to TCMR 779.137(l). Information on the types of cross
sections, maps, and plans professional biologists would be allowed to
prepare and certify was not provided. Information as to whether or not
professional biologists possess the same expertise as qualified
registered professional engineers and geologists with respect to
preparation of cross sections, maps and plans included in surface coal
mining permit applications was not provided. Also, documentation as to
whether professional biologists are authorized by Texas law to prepare
and certify these documents for surface coal mining permit applications
was not provided.
Therefore, the Director finds that the proposed revision would
render TCMR 779.136(l) inconsistent with both section 507(b)(14) of
SMCRA and the Federal regulations at 30 CFR 779.25(b) and is not
approving it.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. No public comments were
received, and because no one requested an opportunity to speak at a
public hearing, 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 Texas program (Administrative
Record No. 596.01). Comments were received from the U.S. Bureau of Land
Management, the U.S. Army Corps of Engineers, and the Natural Resources
Conservation Service.
The U.S. Bureau of Land Management responded on September 15, 1995,
that the revised regulation appeared to exceed Federal coal standards
(Administrative Record No. 596.04). The U.S. Army Corps of Engineers
responded on September 18, 1995, that the proposed regulation change
was satisfactory to its agency (Administrative Record No. 596.02). The
Natural Resources Conservation Service responded on October 2, 1995,
that it supported the amendment (Administrative Record No. 596.05).
As discussed in section III, neither SMCRA nor the Federal
regulations authorize professional biologists to prepare and certify
cross sections, map, and plans included in surface mining and
reclamation permit applications.
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.).
The revision that Texas proposed to make in this amendment did not
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (Administrative Record No. TX-596.01). EPA
did not respond to OSM's request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP. Neither responded to the
request for comments.
V. Director's Decision
Based on the above finding in section III, the Director is not
approving the proposed amendment, as submitted by Texas on August 31,
1995, that would allow professional biologists to prepare and certify
cross sections, maps, and plans for surface mining permit applications.
The Federal regulations at 30 CFR Part 943, codifying decisions
concerning the Texas program, are being amended to implement this
decision. The 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
[[Page 56531]]
be submitted to OSM for review as a program amendment. The Federal
regulations at 30 CFR 732.17(g) prohibit any unilateral changes to
approved State programs. In the oversight of the Texas program, the
Director will recognize only the statutes, regulations and other
materials approved by OSM, together with any consistent implementing
policies, directives and other materials, and will require the
enforcement by Texas 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 the
Federal regulations at 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.
List of Subjects in 30 CFR Part 943
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 27, 1995.
Brent Wahlquist,
Regional Director, Mid-Continent 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 943--TEXAS
1. The authority citation for Part 943 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 943.15 is amended by adding paragraph (k) to read as
follows:
Sec. 943.15 Approval of regulatory program amendments.
* * * * *
(k) Effective November 9, 1995, the revision to TCMR 779.137(l), as
submitted to OSM on August 31, 1995, is not approved to the extent that
it would allow professional biologists to prepare and certify cross
sections, maps, and plans included in surface mining permit
applications.
[FR Doc. 95-27811 Filed 11-8-95; 8:45 am]
BILLING CODE 4310-05-M
