[Federal Register Volume 60, Number 217 (Thursday, November 9, 1995)]
[Rules and Regulations]
[Pages 56529-56531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27811]



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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.

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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]
BILLING CODE 4310-05-M