Ohio Regulatory Program Amendment

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.

-----------------------------------------------------------------------

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

[[Page 36353]]

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

[[Page 36354]]

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

[[Page 36355]]

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