[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 

[[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