[Federal Register Volume 60, Number 136 (Monday, July 17, 1995)]
[Rules and Regulations]
[Pages 36352-36355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17379]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
[OH-233; Amendment Number 69R]
Ohio Regulatory Program Amendment
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is announcing the approval of 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 amendment was initiated by Ohio and is intended to make the Ohio
program as effective as the corresponding Federal regulations
concerning the filing of financial interest statements, acceptance of
gifts and gratuities, appeal procedures for remedial actions regarding
prohibited financial interests, and the submittal of yield data with
requests for phase III bond release on areas reclaimed to pasture or
grazing land.
EFFECTIVE DATE: July 17, 1995.
FOR FURTHER INFORMATION CONTACT: Ms. Beverly C. Brock, Acting Director,
Columbus Field Office, Office of Surface Mining Reclamation and
Enforcement, 4480 Refugee Road, Suite 201, Columbus, Ohio 43232;
Telephone: (614) 866-0578.
SUPPLEMENTARY INFORMATION:
I. Background on the Ohio Program.
II. Discussion 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. Information on the general background of the
Ohio program, including the Secretary's findings, the disposition of
comments, and a detailed explanation of the conditions of approval of
the Ohio program, can be found in the August 10, 1982, Federal Register
(47 FR 34688). Subsequent actions concerning the conditions of approval
and program amendments are identified at 30 CFR 935.11, 935.15, and
935.16.
II. Discussion of the Proposed Amendment
The Ohio Department of Natural Resources, Division of Reclamation
(Ohio) submitted proposed Program Amendment Number 69 by letter dated
September 22, 1994 (Administrative Record No. OH-2059). In this
amendment, Ohio proposed to revise two rules at Ohio Administrative
Code (OAC) sections 1501:13-1-03 and 13-7-05 to make the Ohio program
as effective as the corresponding Federal regulations concerning
financial interest statements, appeal procedures for remedial actions
regarding prohibited financial interests, and yield data for pasture
and grazing land.
OSM announced receipt of PA 69 in the October 21, 1994, Federal
Register (59 FR 53122), 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 21, 1994.
OSM and Ohio staff met on February 6, 1995, to discuss OSM's
questions and concerns about PA 69 (Administrative Record No. OH-2098).
In response to OSM's February 6, 1995, questions and comments, Ohio
provided Revised Program Amendment Number 69 (PA 69R) by letter dated
March 8, 1995 (Administrative Record No. OH-2099). In PA 69R, Ohio
proposed further revisions to one rule at OAC section 1501:13-1-03 to
include hearing officers of the Ohio Reclamation Board of Review under
that rule's definition of ``employee,'' to delete separate references
to those hearing officers, and to prohibit the solicitation or
acceptance of gifts and gratuities by members of the Ohio Reclamation
Board of Review.
OSM announced receipt of PA 69R in the March 17, 1995, Federal
Register (60 FR 14401), 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
April 3, 1995.
On April 19, 1995 (Administrative Record No. OH-2114), OSM notified
Ohio that OSM had made an error in its February 6, 1995, questions and
comments on PA 69 and had omitted one necessary change to OAC 1501:13-
1-03 paragraph (L)(1). By letter dated May 3, 1995 (Administrative
Record No. OH-2115), Ohio submitted a final revised version of PA 69R.
OSM announced receipt of revised PA 69R in the May 12, 1995,
Federal Register (60 FR 25660), 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
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comment period closed on May 30, 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 to the Ohio program. Only substantive changes to
Ohio's rules are discussed below. Rule revisions which are not
discussed below concern editorial changes intended to improve the
clarity and readability of the rules.
A. Financial Interest Statements (OAC Section 1501:13-1-03)
1. Definition of ``Employee''
Ohio is revising paragraph (D)(2) to provide that members of the
Ohio Board on Unreclaimed Strip Mined Lands are included under the
definition of ``employee.'' Ohio is also revising this paragraph to
provide that, for the purposes of OAC section 1501:13-1-03, hearing
officers for the Ohio Reclamation Board of Review shall also be
included within the definition of ``employee''. Ohio is also revising
paragraphs (L) (1) and (2) to delete separate references to the
Reclamation Board of Review's hearing officers because those hearing
officers are to be included under the definition of ``employee'' in
this rule.
The corresponding Federal rule at 30 CFR 705.5 defines ``employee''
to mean any person employed by the State Regulatory Authority who
performs any function or duty under SMCRA and members of advisory
boards who perform any function or duty under SMCRA if they perform
decision-making functions for the State Regulatory Authority under
State law or regulations. The Ohio Board on Unreclaimed Strip Mined
Lands is a decision-making advisory board of this type and the hearing
officers for the Ohio Reclamation Board of Review are employed by and
perform functions for the State Regulatory Authority. Therefore, the
Director finds that Ohio's inclusion of these persons under the State
definition of ``employee'' is appropriate and no less effective than
the corresponding Federal definition.
2. Use of Financial Interest Statement Form by Members of the Ohio
Reclamation Board of Review
Ohio is revising paragraph (I)(1) to require that employees and
members of the Ohio Reclamation Board of Review report all required
information concerning employment and financial interests on Form OSM-
23.
The corresponding Federal rule at 30 CFR 705.11 requires that
employees of the State Regulatory Authority and members of advisory
boards established in accordance with State law to represent multiple
interests who perform a function or duty under SMCRA must file a
statement of employment and financial interest. The Ohio Reclamation
Board of Review is an advisory board of this type. The Federal
regulation at 30 CFR 705.10 requires that the required employment and
financial interest information be collected on OSM Form 23. The
Director therefore finds that Ohio's requirement that its employees and
members of the Ohio Reclamation Board of Review file employment and
financial interest statements using OSM Form 23 is no less effective
than the corresponding Federal regulations at 30 CFR 705.10 and 705.11.
3. Acceptance of Gifts and Gratuities by Members of the Ohio
Reclamation Board of Review
Ohio is revising paragraph (J)(1) to prohibit, with certain
exceptions, the solicitation or acceptance of gifts and gratuities by
members of the Ohio Reclamation Board of Review from coal companies
which are conducting or seeking to conduct regulated activities or
which have an interest that may be substantially affected by the
performance of the Board members' official duty.
30 CFR 705.18 prohibits employees from soliciting or accepting
gifts and gratuities from coal companies with interests that may be
substantially affected by the employee's performance of the employee's
official duty. Although there is no corresponding Federal regulation
prohibiting acceptance of gifts and gratuities by members of advisory
boards established in accordance with State law to represent multiple
interests who perform a function or duty under SMCRA, the Director
finds that the State requirement regarding members of the Ohio
Reclamation Board of Review is not inconsistent with the Federal
regulations at 30 CFR 705.18 or with the revisions which Ohio is making
elsewhere in this rule.
4. Appeal of Remedial Actions
Ohio is revising paragraph (L)(1) to specify that nothing in OAC
section 1501:13-1-03 modifies any right of appeal that any employee may
have under State law of a decision by the Chief of the Division of
Reclamation, Ohio Department of Natural Resources, on an employee's
appeal of remedial action for prohibited financial interests.
Although there are no corresponding Federal regulations to this new
provision proposed in paragraph (L)(1), the Director finds that this
provision is not inconsistent with the Federal rule at 30 CFR 705.21(a)
which allows employees to file an appeal through established procedures
within their State.
Ohio is also revising paragraphs (L)(2) to provide that only the
Chief of the Division of Reclamation may appeal a remedial action to
the Director of OSM. The corresponding Federal rule at 30 CFR 705.21(b)
allows that the Head of the State Regulatory Authority may file an
appeal of remedial action concerning a prohibited financial interest
with the Director of OSM who will refer the appeal to the Conflict of
Interest Appeals Board within the U.S. Department of the Interior. The
Director finds that Ohio's proposed paragraph (L)(2) is not less
effective than 30 CFR 705.21(b).
Ohio is also adding paragraph (L)(3) to provide that members of the
Ohio Reclamation Board of Review may request advisory opinions from the
Director of the Office of Surface Mining Reclamation and Enforcement on
issues pertaining to an apparent prohibited financial interest.
However, resolution of conflicts is governed by section 1513.05 and
1513.29 of the Ohio Revised Code.
Although there is no corresponding Federal regulation concerning
appeals by members of advisory boards, the Director finds that the
appeal provision proposed in paragraph (L)(3) is not inconsistent with
the Federal regulations at 30 CFR 705.21 or with the revisions which
Ohio is making elsewhere in this rule.
B. Yield Data for Pasture or Grazing Land (OAC Section 1501:13-7-05)
1. Ohio is adding the requirement in paragraph (A)(2)(c)(ii) that
requests for approval of phase III reclamation on acreage reclaimed as
pasture or grazing land (as well as acreage reclaimed to cropland or
prime farmland) must include yield data.
The Federal regulations at 30 CFR 816/817.116(b)(1) require that,
for areas developed for use as grazing land or pasture land, ground
cover and production of living plants on the revegetated area shall be
at least equal to success standards approved by the regulatory
authority. Ohio's revegetation standards for pasture and grazing land
at OAC 1501:13-9-15 paragraph (G)(3)(a) require that the planted
species equal or exceed the county average yield for hay for any two
years of the period of extended responsibility except the first year.
In order to satisfy this requirement, requests for approval of
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phase III reclamation must therefore include the required yield data.
The Director therefore finds that the proposed requirement in paragraph
(A)(2)(c)(ii) is necessary for consistency within Ohio's regulations
and is not consistent with the Federal regulations at 30 CFR 816/
817.116(b)(1).
IV. Summary and Disposition of Comments
Public Comments
On October 21, 1994; March 17, 1995; and May 12, 1995, the Director
solicited public comments and provided an opportunity for a public
hearing on the proposed amendment. OSM received the following three
comments on the amendment dated April 1, 1995, from the Ohio Mining and
Reclamation Association (OMRA).
(1) Ohio Has Not Held a Hearing on the Proposed Rule Changes
The Director believes that this comment is not immediately relevant
to his decision on this amendment. The public hearing mentioned in the
comment is part of Ohio's internal rule-filing process. If further rule
changes become necessary as a result of comments received during Ohio's
rule filing, Ohio will resubmit those proposed changes to OSM for
review under the program amendment process.
(2) The Requirement at OAC 1501:13-1-03 for Members of the Ohio Board
of Unreclaimed Strip Mined Land To File Financial Interest Statements
Duplicates Requirements Already in Effect for Those Members of the
Board Who Are Also Members of the Ohio Legislature
The Director agrees with the comment that there may be some
duplication in these filings. However, OSM and the Division of
Reclamation, Ohio Department of Natural Resources, have no control over
the nature of the financial information required by other Ohio laws
from members of the State legislature. That required information may or
may not satisfy the reporting requirements of OAC 1501:13-1-03(I) and
the corresponding Federal regulations at 30 CFR 705.17. OSM and Ohio
must therefore maintain separate reporting requirements specific to the
provisions of SMCRA, the accompanying Federal regulations, and the
approved State regulatory program.
(3) The Division of Reclamation, Ohio Department of Natural Resources,
May Not Have the Authority To Request the Indicated Financial
Information From Members of the Ohio Board on Unreclaimed Strip Mined
Land
The Director does not agree with this comment. As discussed above,
OSM concurs with the appropriateness of including those board members
under the State's definition of ``employee.'' Ohio Revised Code section
1513.04(D) prohibits State employees from having a direct or indirect
financial interest in any coal mining or reclamation operation. Ohio's
proposed reporting regulations at OAC 1501:13-1-03 are therefore a
reasonable extension of its legislated authority to prohibit financial
conflicts of interest by its employees.
No other public comments were received. No public hearings were
held as no one requested the opportunity to provide testimony.
Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from the Regional Director of the
U.S. Environmental Protection Agency (EPA) and from the heads of four
other Federal agencies and one State agency with an actual or potential
interest in the Ohio program. Nonsubstantive comments were received
from the EPA, the Soil Conservation Service, the Mine Safety and Health
Administration, and the Ohio Historic Preservation Office. No other
agency comments were received.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Ohio on September 22, 1994, and revised on
March 8, and May 3, 1995.
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 process and to encourage States to
conform their programs 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 alternation of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to a State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved programs. In the oversight
of the Ohio program, the Director will recognize only the approved
program, together with any consistent implementing policies,
directives, and other materials, and will require the enforcement by
Ohio of such provisions.
VI. Procedural Determinations
Executive Order 12866
This final 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 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
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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 935
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 7, 1995.
Allen D. Klein,
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 by adding new paragraph (xxx) to read
as follows:
Sec. 935.15 Approval of regulatory program amendments.
* * * * *
(xxx) The following amendment (Program Amendment 69R) pertaining to
the Ohio regulatory program, as submitted to OSM on September 22, 1994,
and revised on March 8 and May 3, 1995, is approved, effective July 17,
1995: OAC 1501:13-1-03(D)(2), (I)(1), (J)(1), and (L)(1)-(3) (Financial
interest statements) and OAC 1501:13-7-05(A)(2)(b)(ii), (A)(2)(c)(ii)
and (B)(2)(c) (Yield data for phase III bond release).
[FR Doc. 95-17379 Filed 7-14-95; 8:45 am]
BILLING CODE 4310-05-M
