Texas Regulatory Program

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]

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