Ohio Regulatory Program

Note: EPA no longer updates this information, but it may be useful as a reference or resource.
 [Federal Register: October 19, 2006 (Volume 71, Number 202)]
[Proposed Rules]
[Page 61695-61698]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19oc06-20]

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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
[OH-251-FOR]

Ohio Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.
ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We (OSM) are announcing receipt of a proposed amendment to the 
Ohio regulatory program (the ``Ohio program'') under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA or the Act). The proposed 
amendment consists of a request from Ohio to withdraw portions of a 
prior amendment to the Ohio program that OSM approved. The prior 
amendment pertained to clarification of certain Conflict of Interest 
provisions. Although OSM approved the amendment in 1995, Ohio has not 
promulgated the approved regulations through their rule-making process 
and has now decided the approved changes are not necessary.
    This document gives the times and locations that the Ohio program 
and proposed amendment to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4 p.m., 
(local time), November 20, 2006. If requested, we will hold a public 
hearing on the amendment on November 13, 2006. We will accept requests 
to speak at a hearing until 4 p.m., local time, on November 3, 2006.

[[Page 61696]]

ADDRESSES: You may submit comments, identified by OH-251-FOR, by any of 
the following methods:
    ? E-mail: grieger@osmre.gov. Include OH-251-FOR in the 
subject line of the message;
    ? Mail/Hand Delivery: Mr. George Rieger, Chief, Pittsburgh 
Field Division, Office of Surface Mining Reclamation and Enforcement, 3 
Parkway Center, Pittsburgh, Pennsylvania 15220; or
    ? Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading in the 
SUPPLEMENTARY INFORMATION section of this document. You may also 
request to speak at a public hearing by any of the methods listed above 
or by contacting the individual listed under FOR FURTHER INFORMATION 
CONTACT.
    Docket: You may review copies of the Ohio program, this amendment, 
a listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may also receive one free copy of this amendment by 
contacting OSM's Pittsburgh Field Division listed below.

Mr. George Rieger, Chief, Pittsburgh Field Division, Office of Surface 
Mining Reclamation and Enforcement, 3 Parkway Center, Pittsburgh, 
Pennsylvania 15220. Telephone: (412) 937-2153. E-mail: grieger@osmre.gov.
Mr. Michael Sponsler, Chief, Division of Mineral Resources Management, 
Ohio Department of Natural Resources, 1855 Fountain Square Court-Bldg. 
H-2, Columbus, Ohio 43224. Telephone: (614) 265-6633.

FOR FURTHER INFORMATION CONTACT: Mr. George Rieger, Chief, Pittsburgh 
Field Division, Telephone: (412) 937-2153. E-mail: grieger@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Ohio Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Ohio Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``a State law which provides 
for the regulation of surface coal mining and reclamation operations in 
accordance with the requirements of the Act * * * and rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior conditionally approved 
the Ohio program on August 16, 1982. You can find background 
information on the Ohio program, including the Secretary's findings, 
the disposition of comments, and conditions of approval of the Ohio 
program in the August 16, 1982, Federal Register (47 FR 34687). You can 
also find later actions concerning Ohio's program and program 
amendments at 30 CFR 935.11, 935.15, and 935.16.

II. Description of the Proposed Amendment

    By letter dated August 30, 2006, Ohio sent us a proposed amendment 
to its program (Administrative Record Number OH-2187-00) under SMCRA 
(30 U.S.C. 1201 et seq.). In its letter, Ohio stated that it has 
reviewed revisions previously proposed by Ohio in Program Amendment 
#69. Ohio stated that those components of program amendment 
#69 related to Conflict of Interest are no longer necessary, 
and it would like to withdraw those program provisions from 
consideration at this time. OSM approved the provisions proposed in 
program amendment #69 (including the subsequent revisions) in 
the Federal Register on July 17, 1995 (60 FR 36352). However, Ohio did 
not promulgate the approved draft regulations in final form.
    Because we have already published our approval of the Conflict of 
Interest provisions that Ohio has requested be withdrawn from 
consideration, we are unable to merely withdraw those provisions. 
Rather, we are seeking public comment on whether the removal of the 
provisions identified below will render the approved Ohio program less 
effective than SMCRA and the Federal regulations.
    Ohio program amendment #69 was originally submitted by Ohio 
by letter dated September 22, 1994 (Administrative Record Number OH-
2059). Revisions to amendment #69 were subsequently submitted 
by letters dated March 8, 1995, and May 3, 1995 (Administrative Record 
Numbers OH-2099 and OH-2115, respectively). We announced receipt of the 
proposed amendments, and the two revisions, in the October 21, 1994; 
March 17, 1995; and May 12, 1995; Federal Register (59 FR 53122, 60 FR 
14401, and 60 FR 25660, respectively). The Conflict of Interest 
provisions that we approved on July 17, 1995, and that Ohio proposes be 
removed from the approved Ohio program, are identified below.

Financial Interest Statements (OAC [Ohio Administrative Code] Section 
1501:13-1-03)

1. Definition of ``Employee''
    Ohio proposed to revise paragraph (D)(2) to provide that members of 
the Ohio Board on Unreclaimed Strip Mined Lands are included under the 
definition of ``employee.'' Ohio also proposed to revise 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 also proposed to 
revise 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. In our July 17, 1995, approval of these revisions, OSM 
stated that ``the 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 proposed to revise 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. In our July 17, 1995, approval of these revisions, OSM stated 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 proposed to revise 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. In our July 17, 1995, 
approval of these revisions, OSM

[[Page 61697]]

stated 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 proposed to revise 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 
Natural Resources, on an employee's appeal of remedial action for 
prohibited financial interests. In our July 17, 1995, approval of this 
revision, OSM stated 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 also proposed to revise paragraph (L)(2) to provide that only 
the Chief of the Division of Reclamation may appeal a remedial action 
to the Director of OSM. In our July 17, 1995, approval of this 
revision, OSM stated that ``Ohio's proposed paragraph (L)(2) is not 
less effective than 30 CFR 705.21(b).''
    Ohio also added paragraph (L)(3) to provide that members of the 
Ohio Reclamation Board of Review may request advisory opinions from the 
Director of OSM 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. In our July 17, 
1995, approval of this new language, OSM stated 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.''

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the removal of these 
amendments, they will no longer be part of the approved Ohio program.

Written Comments

    Send your written comments to OSM at the address given above. Your 
written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of 
your recommendations. We will not consider or respond to your comments 
when developing the final rule if they are received after the close of 
the comment period (see DATES). We will make every attempt to log all 
comments into the administrative record, but comments delivered to an 
address other than the Appalachian Region office identified above may 
not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: SATS No. OH-251-FOR,'' your name and return address in your 
Internet message. If you do not receive a confirmation that we have 
received your Internet message, contact the Appalachian Region office 
at (412) 937-2153.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., local time, on 
November 3, 2006.
    We will arrange the location and time of the hearing with those 
persons requesting the hearing. If no one requests an opportunity to 
speak, we will not hold the hearing. To assist the transcriber and 
ensure an accurate record, we request, if possible, that each person 
who speaks at a public hearing provide us with a written copy of his or 
her comments. The public hearing will continue on the specified date 
until everyone scheduled to speak has been given an opportunity to be 
heard. If you are in the audience and have not been scheduled to speak 
and wish to do so, you will be allowed to speak after those who have 
been scheduled. We will end the hearing after everyone scheduled to 
speak and others present in the audience who wish to speak, have been 
heard. If you are disabled and need a special accommodation to attend a 
public hearing, contact the person listed under FOR FURTHER INFORMATION 
CONTACT.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowable 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.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society

[[Page 61698]]

and the environment from the adverse effects of surface coal mining 
operations.'' Section 503(a)(1) of SMCRA requires that State laws 
regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian Tribes. 
The basis for this determination is that our decision is on a State 
regulatory program and does not involve a Federal program involving 
Indian lands.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

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 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.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) Will not 
cause a major increase in costs or prices for consumers, individual 
industries, geographic regions, or Federal, State or local governmental 
agencies; and (c) Does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 29, 2006.
Michael K. Robinson,
Acting Regional Director, Appalachian Region.
[FR Doc. E6-17369 Filed 10-18-06; 8:45 am]
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