[Federal Register Volume 59, Number 221 (Thursday, November 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28444]


[[Page Unknown]]

[Federal Register: November 17, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 904

 

Arkansas Regulatory Program

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

action: Final rule; approval of amendment.

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summary: OSM is approving a proposed amendment to the Arkansas 
regulatory program (hereinafter referred to as the ``Arkansas 
program'') under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). Arkansas proposed revisions to the Arkansas statute pertaining 
to the small operator's assistance program (SOAP). The amendment is 
intended to revise the Arkansas program to be consistent with SMCRA and 
incorporate the additional flexibility afforded by SMCRA, as amended by 
the Energy Policy Act of 1992 (Pub. L. 102-486).

effective date: November 17, 1994.

for further information contact: James H. Moncrief, Telephone: (918) 
581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Arkansas Program

    On November 21, 1980, the Secretary of the Interior conditionally 
approved the Arkansas program. General background information on the 
Arkansas program, including the Secretary's findings, the disposition 
of comments, and the conditions of approval of the Arkansas program can 
be found in the November 21, 1980, Federal Register (45 FR 77003). 
Subsequent actions concerning Arkansas' program and program amendments 
can be found at 30 CFR 904.12 and 904.15.

II. Submission of Proposed Amendment

    By letter dated March 31, 1993, Arkansas submitted a proposed 
amendment to its program to SMCRA (administrative record No. AR-496). 
The proposed amendment relates to financial assistance to small 
operators. Arkansas submitted the proposed amendment at its own 
initiative with the intent of making its program consistent with SMCRA, 
as amended by the Energy Policy Act of 1992 (Pub. L. 102-486). Arkansas 
proposed to amend the Arkansas Surface Coal Mining and Reclamation Act 
of 1979 at Arkansas Code Annotated (ACA) 15-58-104(11), by redefining 
the term ``small operator,'' and ACA 15-58-503(a)(2), by expanding the 
permitting activities eligible for funding under SOAP.
    OSM announced receipt of the proposed amendment in the April 22, 
1993, Federal Register (58 FR 21552; administrative record No. AR-500) 
and in the same document opened the public comment period and provided 
an opportunity for a public hearing on the substantive adequacy of the 
proposed amendment. The public comment period closed on May 24, 1993. 
No substantive comments were received. The public hearing, scheduled 
for May 17, 1993, was not held because no one requested an opportunity 
to testify.
    During its review of the amendment, OSM identified concerns 
relating to, among other things, SOAP funding for (1) the cost of the 
preparation of the results of test borings and core samplings at 
proposed ACA 15-58-503(a)(2)(B) and (2) the development of cross 
section maps and plans at proposed ACA 15-58-503(a)(2)(D). In addition, 
OSM required that Arkansas include, at proposed ACA 15-58-503(a)(2), 
the requirement for a coal operator to reimburse the State for SOAP 
expenses if the operator's coal production exceeds the allowable limit. 
OSM notified Arkansas of these concerns by letter dated June 23, 1993 
(administrative record No. AR-507).
    By letter dated July 22, 1993, Arkansas responded to OSM's concerns 
by submitting revisions to its proposed program amendment 
(administrative record No. AR-505).
    Based upon the revisions to the proposed program amendment 
submitted by Arkansas, OSM reopened the public comment period in the 
August 23, 1993, Federal Register (58 FR 44477; administrative record 
No. AR-511). The public comment period closed on September 7, 1993.
    During its review of the revised amendment, OSM identified concerns 
relating to, among other things, the coal operator's liability for 
reimbursement of the cost of SOAP services at proposed ACA 15-58-
503(a)(2). OSM notified Arkansas of these concerns by letter dated 
October 19, 1993 (administrative record No. AR-513).
    By letter dated August 26, 1994, Arkansas responded by submitting 
additional revisions to its proposed amendment that replaced in their 
entirety the previously proposed revisions (administrative record No. 
AR-521).
    Based upon the revisions to the proposed program amendment 
submitted by Arkansas, OSM reopened the public comment period in the 
September 29, 1994, Federal Register (59 FR 49615; administrative 
record No. AR-525). The public comment period closed on October 14, 
1994.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 732.15 and 732.17, finds that the proposed program amendment 
submitted by Arkansas on March 31, 1993, and as revised by it on July 
22, 1993, and August 26, 1994, is no less stringent than SMCRA, as 
amended. Thus, the Director approves the proposed amendment.

1. Typographical Errors in Arkansas' Codification at Proposed ACA 15-
58-104(11) and ACA 15-58-503(a)

    In its August 26, 1994, proposed amendment, Arkansas submitted 
proposed revisions at paragraph (12) of ACA 15-58-104 and paragraph (c) 
of ACA 15-58-503. However, in the published ACA, the language that 
Arkansas has proposed to revise occurs at paragraph (11) of ACA 15-58-
104 and paragraph (a) of ACA 15-58-503. In addition, in its proposed 
amendment as originally submitted on March 31, 1993, and subsequently 
revised on July 22, 1993, Arkansas submitted revisions at paragraph (a) 
of ACA 15-58-503.
    OSM concluded that these discrepancies occurred as a result of 
typographical errors and that Arkansas intended to propose revisions at 
ACA 15-58-104(11) and ACA 15-58-503(a) rather than at ACA 15-58-104(12) 
and ACA 15-58-503(c) in its August 26, 1994, proposed amendment. For 
this reason, in findings Nos. 2 through 5 below and elsewhere 
throughout this document, OSM addresses Arkansas' proposed revisions at 
ACA 15-58-104(11) and ACA 15-58-503(a).
    OSM recommends that when Arkansas promulgates its proposed 
amendment as submitted on August 26, 1994, Arkansas correct these 
typographical errors and ensure that it promulgates the correct 
codification for the proposed revisions to the published ACA.

2. ACA 15-58-104(11), Definition of ``Small Operator''

    Arkansas proposed revisions to ACA 15-58-104(11), redefining 
``small operator'' to mean

an operator whose probable annual production at all locations will 
not exceed 300,000 tons of coal per year.

    Although there is no counterpart definition in SMCRA, Arkansas' 
proposed definition is consistent with section 507(c)(1) of SMCRA, 
which identifies coal operations that qualify for SOAP as those where 
the probable total annual production at all locations of a coal surface 
mining operator will not exceed 300,000 tons. Therefore, the Director 
finds that proposed ACA 15-58-1-104(11) is no less stringent than 
section 507(c)(1) of SMCRA, and approves it.

3. ACA 15-58-503(a)(2)(A) (i) through (vi), Permitting Activities 
Eligible for Payment Under SOAP

    Arkansas proposed at ACA 15-58-503(a)(2)(A) (i) through (vi) to 
expand those activities associated with the development of a surface 
coal mining and reclamation permit application that are eligible for 
funding under SOAP. As discussed below, Arkansas proposed at ACA 15-58-
503(a)(2)(A) (i) through (v) to provide funding under SOAP for certain 
permitting activities that are included by reference in the counterpart 
sections 507(c)(1) (A) through (E) of SMCRA. And, as discussed below, 
Arkansas proposed at ACA 15-58-503(a)(2)(A)(vi) to provide funding 
under SOAP for certain permitting activities that are substantively 
identical to the permitting activities identified in the counterpart 
section 507(c)(1)(F) of SMCRA.
    a. ACA 15-58-503(a)(2)(A), General requirements for activities 
eligible for funding under SOAP. Arkansas proposed to revise ACA 15-58-
503(a)(2)(A) to (1) add the requirement that the activities specified 
in proposed ACA 15-58-503(a)(2)(A) (i) through (vi) must be performed 
by a qualified public or private laboratory or such other public or 
private qualified entity designated by Arkansas and (2) delete the 
language that limits the activities eligible for funding under SOAP to 
the determination of probable hydrologic consequences and preparation 
of the result of test borings and core samplings. The added requirement 
is substantively identical to the requirement concerning qualified 
laboratories or entities in section 507(c)(1) of SMCRA. The deletion of 
the language concerning the activities that may be funded is consistent 
with Arkansas' proposed ACA 15-58-503(a)(2)(A) (i) through (vi) and 
section 507(c)(1) of SMCRA, as amended by the Energy Policy Act.
    Therefore, the Director finds that the proposed revisions of ACA 
15-58-503(a)(2)(A) are no less stringent than the requirements of 
section 507(c)(1) of SMCRA, and approves them.
    b. ACA 15-58-503(a)(2)(A)(i), Determination of probable hydrologic 
consequences. Arkansas proposed to add a new paragraph at ACA 15-58-
503(a)(2)(A)(i) that provides funding under SOAP for the costs of the 
determination of probable hydrologic consequences required by ACA 15-
58-503(a)(2)(A), including the engineering analyses and designs 
necessary for the determination.
    Proposed ACA 15-58-503(a)(2)(A)(i) is identical to section 
507(c)(1)(A) of SMCRA, with the exception that section 507(c)(1)(A) of 
SMCRA references the requirements for the determination of probable 
hydrologic consequences at section 507(b)(11) of SMCRA. Arkansas' 
existing requirements for the determination of probable hydrologic 
consequences at referenced ACA 15-58-503(a)(2) are substantively 
identical to the requirements at referenced section 507(b)(11) of 
SMCRA.
    Therefore, the Director finds that the requirements of proposed ACA 
15-58-503(a)(2)(A)(i) are substantively identical to and no less 
stringent than the requirements of sections 507(c)(1)(A) and 507(b)(11) 
of SMCRA. The Director approves the proposed requirements.
    c. ACA 15-58-503(a)(2)(A)(ii), Development of cross-sections, maps, 
and plans. Arkansas proposed to add a new paragraph at ACA 15-58-
503(a)(2)(A)(ii) that provides funding under SOAP for the costs of the 
development of permit application cross-sections, maps, and plans of 
land to be affected by a surface coal mining and reclamation permit. 
Arkansas proposed at ACA 15-58-503(a)(2)(A)(ii) to (1) require that 
these cross-sections, maps, and plans

shall be prepared by or under the direction of a qualified 
registered professional engineer or geologist with assistance from 
experts in related fields such as land surveying and landscape 
architecture,

and (2) specify certain information that must be depicted in the cross-
sections, maps, and plans.
    Section 507(c)(1)(B) of SMCRA provides funding under SOAP for the 
costs of the development of permit application cross-sections, maps, 
and plans of land to be affected by a surface coal mining and 
reclamation permit. Section 507(c)(1)(B) of SMCRA references the 
requirements for the development of cross-sections, maps, and plans at 
section 507(b)(14) of SMCRA.
    Arkansas proposed requirements at ACA 15-58-503(a)(2)(A)(ii) that 
are, with one exception, substantively identical to the requirements 
for cross-sections, maps, and plans in section 507(c)(1)(B) of SMCRA 
and referenced section 507(b)(14) of SMCRA. The exception is that 
Arkansas' proposed ACA 15-58-503(a)(2)(A)(ii) does not require that the 
cross-sections, maps, and plans be certified by a qualified registered 
professional engineer, or professional geologist as does section 
507(b)(14) of SMCRA. However, in its regulations at section 779.25(l) 
of the Arkansas Surface Mining and Reclamation Code, Arkansas requires 
that all maps required by section 779.25, which includes those same 
features required to be depicted by the cross-sections, maps, and plans 
in proposed ACA 15-58-503(a)(2)(A)(ii), must be

prepared by or under the direction of and certified by a qualified 
registered professional engineer or professional geologist, with 
assistance from experts in related fields such as land surveying and 
landscape architecture and shall be updated as required by the 
Director.

    Therefore, the Director finds that the requirements of proposed ACA 
15-58-503(a)(2)(A)(ii), in conjunction with the requirements of section 
779.25(l) in the Arkansas regulations, are substantively identical to 
and no less stringent than the requirements of sections 507(c)(1)(B) 
and 507(b)(14) of SMCRA. The Director approves the proposed 
requirements.
    d. ACA 15-58-503(a)(2)(A)(iii), Geologic drilling and statement of 
results of test borings and core samplings. Arkansas proposed to add a 
new paragraph at ACA 15-58-503(a)(2)(A)(iii) that provides funding 
under SOAP for the costs of geologic drilling and the statement of 
results of test borings and core samplings from the permit area, 
including logs of drill holes; the thickness of the coal seam found, 
and analysis of the chemical properties of such coal; the sulfur 
content of any coal seam; chemical analysis of potentially acid or 
toxic-forming sections of the overburden; and chemical analysis of the 
stratum lying immediately underneath the coal to be mined. Proposed ACA 
15-58-503(a)(2)(A)(iii) also provides that its provisions may be waived 
by the Director of the Arkansas Department of Pollution Control and 
Ecology with respect to a specific application by a written 
determination that such requirements are unnecessary.
    Section 507(c)(1)(C) of SMCRA provides for the funding of geologic 
drilling and the statement of results of test borings and core 
samplings required by section 507(b)(15) of SMCRA. Section 507(b)(15) 
of SMCRA requires that a permit application include a statement of the 
result of test borings or core samplings from the permit area, 
including logs of drill holes; the thickness of the coal seam found, 
and analysis of the chemical properties of such coal; the sulfur 
content of any coal seam; chemical analysis of potentially acid or 
toxic-forming sections of the overburden; and chemical analysis of the 
stratum lying immediately underneath the coal to be mined. Section 
507(b)(15) of SMCRA also states that its provisions may be waived by 
the regulatory authority with respect to the specific application by a 
written determination that such requirements are unnecessary.
    The Director finds that the requirements of proposed ACA 15-58-
503(a)(2)(A)(iii) are substantively identical to and no less stringent 
than the requirements of sections 507(c)(1)(C) and 507(b)(15) of SMCRA. 
The Director approves the proposed requirements.
    e. ACA 15-58-503(a)(2)(A)(iv), Collection of archaeological 
information. Arkansas proposed to add a new paragraph at ACA 15-58-
503(a)(2)(A)(iv) that provides funding under SOAP for the costs of the 
collection of archaeological information and any other historical 
information needed to prepare accurate maps to an appropriate scale 
clearly showing all manmade features and significant known 
archaeological sites existing on the date of the application and the 
preparation of plans necessitated thereby.
    Section 507(c)(1)(D) of SMCRA provides for funding of the 
collection of archaeological information required by section 507(b)(13) 
of SMCRA and any other archaeological and historical information 
required by the regulatory authority, and the preparation of plans 
necessitated thereby. Section 507(b)(13) of SMCRA requires accurate 
maps that include all manmade features and significant known 
archaeological sites existing on the date of application.
    Section 507(b)(13) of SMCRA also requires maps or plans that shall, 
among other things specified by the regulatory authority, show all 
boundaries of the land to be affected, the boundary lines and names of 
present owners of record of all surface areas abutting the permit area, 
and the location of all buildings within 1000 feet of the permit area. 
These additional maps and plans are extraneous to the requirements at 
section 507(c)(1)(D) of SMCRA concerning SOAP funding for the 
collection of archaeological information. Therefore, the fact that 
these other maps or plans are not included for SOAP funding at proposed 
ACA 15-58-503(a)(2)(A)(iv) is consistent with the provisions for SOAP 
funding under section 507(c)(1)(D) of SMCRA.
    Based on the above discussion, the Director finds that the 
provisions of proposed ACA 15-58-503(a)(2)(A)(iv) are no less stringent 
than the provisions of sections 507(c)(1)(D) and 507(b)(13) of SMCRA, 
and approves them.
    f. ACA 15-58-503(a)(2)(A)(v), Preblast surveys. Arkansas proposed 
to add a new paragraph at ACA 15-58-503(a)(2)(A)(v) that provides 
funding under SOAP for the costs of preblast surveys requested by 
residents or owners of manmade dwellings or structures within \1/2\ 
mile of any portion of the permitted area. Proposed ACA 15-58-
503(a)(2)(A)(v) also requires that the applicant or permittee shall 
conduct the preblast survey of such structures and submit the survey to 
the Director of the Arkansas Department of Pollution Control and 
Ecology and a copy to the resident or owner making the request.
    Section 507(c)(1)(E) of SMCRA provides for the funding of preblast 
surveys required by section 515(b)(15)(E) of SMCRA. Section 
515(b)(15)(E) of SMCRA requires that, upon the request of a resident or 
owner of a manmade dwelling or structure within \1/2\ mile of any 
portion of the permitted area, the applicant or permittee shall conduct 
a preblasting survey of such structures and submit the survey to the 
regulatory authority and a copy to the resident or owner making the 
request.
    The Director finds that the requirements of proposed ACA 15-58-
503(a)(2)(A)(v) are substantively identical to and no less stringent 
than the requirements of sections 507(c)(1)(E) and 515(b)(15)(E) of 
SMCRA. The Director approves the proposed requirements.
    g. ACA 15-58-503(a)(2)(A)(vi), Collection of site-specific resource 
information and production of protection and enhancement plans for fish 
and wildlife habitats and other environmental values. Arkansas proposed 
to add a new paragraph at ACA 15-58-503(a)(2)(A)(vi) that provides 
funding under SOAP for the costs of the collection of site-specific 
resource information and production of protection and enhancement plans 
for fish and wildlife habitats and other environmental values.
    Arkansas' proposed provision is substantively identical to section 
507(c)(1)(F) of SMCRA. Therefore, the Director finds that proposed ACA 
15-58-503(a)(2)(A)(vi) is no less stringent than section 507(c)(1)(F) 
of SMCRA, and approves it.

4. ACA15-58-503(a)(2)(B), The Cost of Training and the Obligation to 
Ensure That Qualified Coal Operators Are Aware of SOAP Assistance

    Arkansas proposed a new paragraph at ACA 15-58-503(a)(2)(B) 
concerning the responsibility to (1) provide or assume the costs of 
training coal operators that meet the qualifications under SOAP 
regarding the preparation of permit applications and compliance with 
the regulatory program, and (2) ensure that qualified coal operators 
are aware of the available assistance.
    Section 507(c)(2) of SMCRA states that the Secretary of the 
Interior shall provide or assume the cost of training coal operators 
that meet the qualification stated in section 507(c)(1) of SMCRA 
concerning the preparation of permit applications and compliance with 
the regulatory program, and shall ensure that qualified coal operators 
are aware of the assistance available under this subsection. With two 
exceptions, which are discussed below, proposed ACA 15-58-503(a)(2)(B) 
is substantively identical to section 507(c)(2) of SMCRA.
    The first exception is that, at proposed ACA 15-58-503(a)(2)(B), 
Arkansas specifies that it is the Arkansas Department of Pollution 
Control and Ecology's responsibility rather than the Secretary of the 
Interior's responsibility to provide or assume the cost of training 
operators and ensure that operators are aware of the available 
assistance. OSM is provisionally interpreting section 507(c)(2) of 
SMCRA to specify that it is a requirement for State regulatory 
authorities in primacy states to assume these responsibilities. OSM 
intends to clarify this requirement when it promulgates implementing 
rules.
    The second exception is that, at proposed ACA 15-58-503(a)(2)(B), 
Arkansas uses the term ``small operator'' in place of the phrase ``coal 
operators that meet the qualifications stated in [section 507(c)(1)]'' 
that is used in section 507(c)(2) of SMCRA. As discussed in finding No. 
2 above, Arkansas' proposed definition of ``small operator'' is 
consistent with section 507(c)(1) of SMCRA.
    Therefore, the Director finds that proposed ACA 15-58-503(a)(2)(B) 
is no less stringent than the requirements of section 507(c)(2) SMCRA, 
and approves it.

5. ACA 15-58-503(a)(2)(C), An Operator's Obligation to Reimburse the 
Department for the Cost of the Services Rendered under SOAP

    Arkansas proposed a new paragraph at ACA 15-58-503(a)(2)(C) that 
requires a coal operator that has received assistance under SOAP to 
reimburse the State for the cost of the services rendered if Arkansas 
finds that the operator's actual and attributed annual production of 
coal for all locations exceeds 300,000 tons during the 12 months 
immediately following the date on which the operator is issued the 
surface coal mining and reclamation permit. Proposed ACA 15-58-
503(a)(2)(C) is substantively identical to section 507(h) of SMCRA. 
Therefore, the Director finds that proposed ACA 15-58-503(a)(2)(C) is 
no less stringent than section 507(h) of SMCRA, and approves it.

IV. Summary and Disposition of Comments

    Following are summaries of all substantive written comments on the 
proposed amendment that were received by OSM, and OSM's responses to 
them.

1. Public Comments

    OSM invited public comments on the proposed amendment, but none 
were received (administrative record Nos. AR-507, AR-513, and AR-525.

2. Federal Agency Comments

    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the Arkansas program (administrative record Nos. 
AR-497, AR-506, and AR-523).
    The U.S. Bureau of Land Management responded on April 19, 1993, 
that its management responsibilities would not be impacted by the 
proposed amendment (administrative record No. AR-498).
    The U.S. Bureau of Mines responded on April 27 and August 11, 1993, 
and October 12, 1994, that it had no comments (administrative record 
Nos. AR-499, AR-508, AR-528).
    The U.S. Soil Conservation Service responded on May 5 and August 
10, 1993, and October 24, 1994, that it had no comments (administrative 
record Nos. AR-501, AR-509, and AR-530).
    The U.S. Fish and Wildlife Service (FWS) responded on May 11, 1993, 
that, because the proposed amendment should provide for improved fish 
and wildlife protection plans and increased reclamation efforts on 
abandoned mined lands, it concurred with it (administrative record No. 
AR-502). Additionally, the U.S. FWS responded on October 12, 1994, that 
it had no comments (administrative record No. AR-527).
    The U.S. National Park Service responded on May 14, 1993, that it 
had no comments (administrative record No. AR-503).
    The U.S. Forest Service responded on May 14, 1993, that it had no 
comments (administrative record No. AR-504).

3. Environmental Protection Agency (EPA) Concurrence and Comments

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit 
the written concurrence of 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.). 
Pursuant to 732.17(h)(11)(i), OSM is required to solicit comments on 
the proposed amendment from EPA.
    None of the revisions that Arkansas proposed to make in its 
amendment pertain to air or water quality standards.
    Therefore, OSM did not request EPA's concurrence. OSM did solicit 
comments from EPA on the proposed amendment (administrative record Nos. 
AR-497, AR-506, and AR-523).
    EPA responded on October 25, 1993, that because the amendment 
demonstrates legal authority, administrative capability, and technical 
conformity with controlling National Pollutant Discharge Elimination 
System regulations necessary to maintain water quality standards 
promulgated under the authority of the Clean Water Act, as amended, it 
concurred with the proposed amendment (administrative record No. AR-
514).

4. State Historic 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 (administrative record Nos. 
AR-497, AR-506, and AR-523). The ACHP did not respond to OSM's request.
    SHPO responded on August 27, 1993, that, although the revisions did 
not directly address cultural resources issues in Arkansas, it wanted 
to remind OSM of the need to be responsive to section 106 of the 
National Historic Preservation Act of 1966, as amended (NHPA, 
administrative record No. AR-510). SHPO further commented that because 
NHPA requires Federal agencies to give due consideration to historic 
properties when those historic properties may be affected by the 
undertakings of the agency, surface mining activities that may have the 
result of affecting historic properties should be submitted to its 
office for review and comment prior to their commencement.
    As SHPO is award, the NHPA definition of ``undertaking'' at 16 
U.S.C. section 470w(7) was expanded by 1992 amendments to include those 
projects, activities, or programs funded in whole or in part under the 
direct or indirect jurisdiction of a Federal agency, including, among 
other things, ``those subject to State or local regulation administered 
pursuant to a delegation or approval by a Federal agency'' (see 16 
U.S.C. section 470w(7)(D)). This new statutory language encompasses 
State permitting actions carried out under SMCRA. As a result of the 
1992 NHPA amendments, OSM has taken action to clarify that the State 
permitting activities are Federal undertakings subject to the section 
106 review and consultation requirements of NHPA. OSM, in conjunction 
with ACHP, the National Council of SHPO's, and others, has developed a 
draft programmatic Agreement as the preferred alternative for 
implementing OSM's responsibilities under the 1992 NHPA amendments. The 
draft agreement has undergone public review and the agencies involved 
in its development are currently reviewing public comments. Upon 
completion, the agreement will assist OSM, through coordination with 
the States, in fulfilling OSM's responsibilities under section 106 of 
NHPA.

V. Director's Decision

    Based on the above findings, the Director approves Arkansas' 
proposed amendment as submitted on March 31, 1993, and as revised on 
July 22, 1993, and August 26, 1994.
    The Director approves the statutes as proposed by Arkansas with the 
provision that they be fully promulgated in identical form to the rules 
submitted to and reviewed by OSM and the public.
    The Federal regulations at 30 CFR Part 904, codifying decisions 
concerning the Arkansas 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 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

1. 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).

2. 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 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 12550) 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 State 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.

3. 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 of 1969 (42 U.S.C. 
4332(2)(C)).

4. 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.).

5. 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 that is the subject of this rule is based upon 
counterpart 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 counterpart Federal regulations.

List of Subjects in 30 CFR Part 904

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 9, 1994.
Charles E. Sandberg,
Acting Assistant Director, Western Support 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 904--ARKANSAS

    1. The authority citation for Part 904 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 904.15 is revised to read as follows:


Sec. 904.15  Approval of amendments to the Arkansas regulatory program.

    Revisions to and/or addition of the following provisions of the 
Arkansas Surface Coal Mining and Reclamation Act of 1979, as submitted 
to OSM on March 31, 1993, and revised on July 22, 1993, and August 26, 
1994, are approved effective November 17, 1994.

Arkansas Code Annotated (ACA) 15-58-104(11), definition of ``small 
operator;''
ACA 15-58-503(a)(2)(A), activities associated with the development of a 
surface coal mining and reclamation permit application that are 
eligible for funding under the small operator's assistance program 
(SOAP);
ACA 15-58-503(a)(2)(B), the responsibility for training coal operators 
that meet the SOAP qualifications regarding the preparation of permit 
applications, and ensuring that qualified coal operators are aware of 
the available assistance; and
ACA 15-58-503(a)(2)(C), an operator's obligation to reimburse the 
Arkansas Department of Pollution Control and Ecology for the cost of 
the services rendered under SOAP.

[FR Doc. 94-28444 Filed 11-16-94; 8:45 am]
BILLING CODE 4310-05-M