Ohio Regulatory Program, 26291-26296 [E7-8867]
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Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Rules and Regulations
persons who intend to market this type
of device must submit to FDA a
premarket notification, prior to
marketing the device, which contains
information about the gene expression
profiling test system for breast cancer
prognosis they intend to market.
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II. What Is the Environmental Impact of
This Rule?
The agency has determined under 21
CFR 25.34(b) that this action is of a type
that does not individually or
cumulatively have a significant effect on
the human environment. Therefore,
neither an environmental assessment
nor an environmental impact statement
is required.
III. What Is the Economic Impact of
This Rule?
FDA has examined the impacts of the
final rule under Executive Order 12866,
the Regulatory Flexibility Act (5 U.S.C.
601–612), and the Unfunded Mandates
Reform Act of 1995 (Public Law 104–4).
Executive Order 12866 directs agencies
to assess all costs and benefits of
available regulatory alternatives and,
when regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety, and other advantages;
distributive impacts; and equity). The
agency believes that this final rule is not
a significant regulatory action under the
Executive Order.
The Regulatory Flexibility Act
requires agencies to analyze regulatory
options that would minimize any
significant impact of a rule on small
entities. Because classification of these
devices into class II will relieve
manufacturers of the device of the cost
of complying with the premarket
approval requirements of section 515 of
the act (21 U.S.C. 360e), and may permit
small potential competitors to enter the
marketplace by lowering their costs, the
agency certifies that the final rule will
not have a significant impact on a
substantial number of small entities.
Section 202(a) of the Unfunded
Mandates Reform Act of 1995 requires
that agencies prepare a written
statement, which includes an
assessment of anticipated costs and
benefits, before proposing ‘‘any rule that
includes any Federal mandate that may
result in the expenditure by State, local,
and tribal governments, in the aggregate,
or by the private sector, of $100,000,000
or more (adjusted annually for inflation)
in any one year.’’ The current threshold
after adjustment for inflation is $122
million, using the most current (2005)
Implicit Price Deflator for the Gross
Domestic Product. FDA does not expect
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this final rule to result in any 1-year
expenditure that would meet or exceed
this amount.
IV. Does This Final Rule Have
Federalism Implications?
FDA has analyzed this final rule in
accordance with the principles set forth
in Executive Order 13132. FDA has
determined that the rule does not
contain policies that have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Accordingly, the
agency has concluded that the rule does
not contain policies that have
federalism implications as defined in
the Executive Order and, consequently,
a federalism summary impact statement
is not required.
V. How Does This Rule Comply With
the Paperwork Reduction Act of 1995?
This final rule contains no collections
of information. Therefore, clearance by
the Office of Management and Budget
under the Paperwork Reduction Act of
1995 is not required.
VI. What References Are on Display?
The following reference has been
placed on display in the Division of
Dockets Management (HFA–305), Food
and Drug Administration, 5630 Fishers
Lane, rm. 1061, Rockville, MD 20852,
and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday
through Friday.
1. Petition from Agendia BV, dated January
22, 2007.
List of Subjects in 21 CFR Part 866
Biologics, Laboratories, Medical
devices.
I Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs, 21 CFR part 866 is
amended as follows:
PART 866—IMMUNOLOGY AND
MICROBIOLOGY DEVICES
1. The authority citation for 21 CFR
part 866 continues to read as follows:
I
Authority: 21 U.S.C. 351, 360, 360c, 360e,
360j, 371.
2. Section 866.6040 is added to
subpart G to read as follows:
I
§ 866.6040 Gene expression profiling test
system for breast cancer prognosis.
(a) Identification. A gene expression
profiling test system for breast cancer
prognosis is a device that measures the
ribonucleic acid (RNA) expression level
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26291
of multiple genes and combines this
information to yield a signature (pattern
or classifier or index) to aid in prognosis
of previously diagnosed breast cancer.
(b) Classification. Class II (special
controls). The special control is FDA’s
guidance document entitled ‘‘Class II
Special Controls Guidance Document:
Gene Expression Profiling Test System
for Breast Cancer Prognosis.’’ See
§ 866.1(e) for the availability of this
guidance document.
Dated: May 1, 2007.
Linda S. Kahan,
Deputy Director, Center for Devices and
Radiological Health.
[FR Doc. E7–8871 Filed 5–8–07; 8:45 am]
BILLING CODE 4160–01–S
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 935
[OH–251–FOR]
Ohio Regulatory Program
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of
amendment.
AGENCY:
SUMMARY: We are approving an
amendment to the Ohio regulatory
program (the ‘‘Ohio program’’) under
the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the
Act). This amendment is intended to
remove certain Conflict of Interest
provisions from the approved Ohio
program that were previously approved
by OSM but have not been promulgated
by Ohio through their rulemaking
process.
EFFECTIVE DATE: May 9, 2007.
FOR FURTHER INFORMATION CONTACT: Mr.
George Rieger, Chief, Pittsburgh Field
Division, Telephone: (717) 782–4036.
E-mail: grieger@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Ohio Program
II. Submission of the Amendment
III. OSM’s Findings
IV. Summary and Disposition of Comments
V. OSM’s Decision
VI. 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
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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. Submission of the 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
amendments previously proposed by
Ohio in Program Amendment #69. Ohio
stated that those amendments of
program amendment #69 related to
Conflict of Interest have not been
promulgated by Ohio and are deemed to
be no longer necessary. Therefore, Ohio
stated, it would like to withdraw the
Conflict of Interest amendments from
consideration by OSM.
OSM approved the Conflict of Interest
amendments that Ohio proposed in
program amendment #69 (including the
subsequent revisions) in the Federal
Register on July 17, 1995 (60 FR 36352).
Because we had already published our
approval of the Conflict of Interest
provisions that Ohio has requested be
withdrawn from consideration, we were
unable to merely withdraw those
provisions. Rather, we sought public
comment on whether the removal of the
Conflict of Interest provisions that we
approved in 1995 would render the
approved Ohio program less effective
than SMCRA and the Federal
regulations.
Background Information: 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 those proposed amendments,
and the two revisions, in the October 21,
1994; March 17, 1995; and May 12,
1995; Federal Register (59 FR 53122, 60
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FR 14401, and 60 FR 25660,
respectively). We approved the
amendments in the July 17, 1995,
Federal Register notice.
We announced receipt of Ohio’s
request that we remove the Conflict of
Interest provisions from the approved
Ohio program in the October 19, 2006,
Federal Register ( 71 FR 61695). In the
same document, we opened the public
comment period and provided an
opportunity for a public hearing or
meeting on the adequacy of the
proposed amendment (Administrative
Record Number OH–2187–01). We did
not hold a hearing or meeting because
no one requested one. The public
comment period ended on November
20, 2006. We received no comments.
III. OSM’s Findings
Following are the findings we made
concerning the amendment under
SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17. We are
approving the amendment. Any
revisions that we do not specifically
discuss below concern nonsubstantive
minor wording, editorial, or
renumbering of sections changes, and
are approved herein without discussion.
Restrictions on Financial Interest of
Employees. Ohio Administrative Code
(OAC) Section 1501:13–1–03
1. OAC 1501: 13–1–03(D)(2) Definition
of ‘‘Employee’’
In its September 22, 1994,
amendment, Ohio proposed to revise
the definition of ‘‘Employee’’ at
paragraph (D)(2) to provide that
members of the Ohio Board (currently
‘‘Council’’) 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 (currently
the Reclamation Commission) shall also
be included within the definition of
‘‘employee.’’ Ohio also proposed to
revise the appeal procedures at
paragraphs (L)(1) and (2) to delete
separate references to the Reclamation
Commission’s hearing officers because
those hearing officers are to be included
under the definition of ‘‘employee’’ in
this rule. We approved these revisions
in our July 17, 1995, notice.
In its August 30, 2006, letter to OSM,
Ohio requested that the provisions that
OSM approved on July 17, 1995, be
withdrawn. Under this request,
therefore, neither members of the
Council nor hearing officers for the
Reclamation Commission would be
specifically identified as ‘‘employees’’
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under the definition of ‘‘employee’’ at
paragraph (D)(2). To approve these
deletions from the Ohio provisions that
were approved by OSM, we must
determine whether the deletions render
the Ohio program less effective than the
Federal definition of ‘‘employee’’ at 30
CFR 705.5.
The Federal definition of ‘‘employee’’
at 30 CFR 705.5 provides as follows:
Employee. Means (a) any person employed
by the State Regulatory Authority who
performs any function or duty under the Act,
and (b) advisory board or commission
members and consultants who perform any
function or duty under the Act, if they
perform decisionmaking functions for the
State Regulatory Authority under the
authority of State law or regulations.
However, members of advisory boards or
commissions established in accordance with
State law or regulations to represent multiple
interests are not considered to be employees.
State officials may through State law or
regulations expand this definition to meet
their program needs.
The Ohio Revised Code (ORC) at
section 1513.29 establishes the Council.
Under ORC 1513.29, the Council’s
duties involve gathering information on
unreclaimed strip mined lands,
studying, and making recommendations
concerning eroded land within the
State, including land affected by strip
mining for which no cash is held in the
strip mining reclamation fund. In
addition, an Ohio Attorney General’s
Opinion from 1978 states that the
Council ‘‘has the authority as a matter
of law to fund reclamation projects on
private lands pursuant to Chapter 1513
of the Revised Code * * *.’’ (Ohio Op.
Atty Gen No. 78–016) That is, members
of the Council perform a function or
duty under Chapter 1513 of the Ohio
Revised Code, and fall within the
definition of ‘‘employee’’ in OAC 1501:
13–1–03. We find that the existing Ohio
definition of ‘‘employee’’ which does
not specifically identify members of the
Council as employees does not render
the Ohio program less effective than the
Federal definition of ‘‘employee’’ at 30
CFR 705.5 and can be approved.
Next, we will consider whether
hearing officers for the Reclamation
Commission are considered employees
under the Federal regulations. The ORC
at 1513.05 establishes the Reclamation
Commission. That provision also
provides that ‘‘The commission shall
appoint one or more hearing officers
who shall be attorneys at law admitted
to practice in this state to conduct
hearings under this chapter.’’ Therefore,
it is clear that hearing officers for the
Reclamation Commission are not
members of the Reclamation
Commission, but are appointed by the
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Reclamation Commission to conduct
hearings. It is our understanding that
the hearing officer for the Reclamation
Commission is an employee of the Ohio
Department of Natural Resources and is
considered by that department to be an
‘‘employee’’ under the Ohio definition
of ‘‘employee’’ at OAC 1501: 13–1–03
and is required to file the appropriate
conflict of interest forms under OAC
1501: 13–1–03(I). Therefore, we find
that the existing Ohio definition of
‘‘employee’’ which does not specifically
identify hearing officers for the
Reclamation Commission as employees
does not render the Ohio program less
effective than the Federal definition of
‘‘employee’’ at 30 CFR 705.5 and can be
approved. Our approval is based upon
our understanding noted above.
2. OAC 1501: 13–1–03(I)(1) Use of
Financial Interest Statement Form by
Members of the Ohio Reclamation
Commission
In its September 22, 1994,
amendment, Ohio proposed to revise
paragraph (I)(1) to add that members of
the Ohio Reclamation Board of Review
(currently Reclamation Commission)
shall report all required information
concerning employment and financial
interests on Form OSM–23. We
approved the provisions on July 17,
1995. On August 30, 2006, Ohio
requested that its amendments to
paragraph (I)(1) that we approved in
1995 be withdrawn. In effect, the phrase
‘‘and members of the Reclamation Board
of Review’’ (currently the Reclamation
Commission) will be deleted from
provision concerning what to file at
OAC 1501: 13–1–03(I)(1).
The Federal regulations at 30 CFR
705.11(a) provide that employees and
members of advisory boards and
commissions established in accordance
with State laws or regulations to
represent multiple interests, who
perform a function or duty under
SMCRA, must file a statement of
employment and financial interests. The
Ohio Reclamation Commission is such a
multi-interest advisory board and,
therefore, must file a statement of
employment and financial interests.
The current Ohio provision at OAC
1501: 13–1–03(F)(1), concerning who
shall file, provides that members of the
Reclamation Commission are required
to file a statement of employment and
financial interests. Therefore, despite
the fact that OAC 1501: 13–1–03(I)(1)
concerning what to file does not
specifically mention members of the
Reclamation Commission, the
Commission members are required to
file by Ohio’s regulations. Therefore, we
find that the existing Ohio provision at
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OAC 1501: 13–1–03(I)(1), despite the
fact that it does not specifically mention
members of the Reclamation
Commission definition, does not render
the Ohio program less effective than the
Federal regulations at 30 CFR 705.11(a)
and can be approved.
We note that OAC 1501: 13–1–03(I)(1)
provides that the report shall be on
‘‘OSM Form 705–1’’ as provided by
OSM. This form number is not correct.
The form that OSM will provide for
reporting financial interests is OSM
‘‘Form 23.’’
3. OAC 1501: 13–1–03(J)(1) Acceptance
of Gifts and Gratuities by Members of
the Ohio Reclamation Commission
In its September 22, 1994,
amendment, 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 (currently Reclamation
Commission) 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 Reclamation
Commission members’ official duties.
We approved the provisions on July 17,
1995.
On August 30, 2006, Ohio requested
that its amendments to paragraph (J)(1)
that we approved be withdrawn. In
effect, the phrase ‘‘and members of the
Reclamation Board of Review’’ will be
deleted from the approved Ohio
program at OAC 1501: 13–1–03(J)(1)
concerning gifts and gratuities. Despite
the fact that the Ohio provision at OAC
1501: 13–1–03(J)(1) does not prohibit
members of the Reclamation
Commission from soliciting or accepting
gifts or any other thing of monetary
value, the Ohio program is not rendered
less effective than the Federal
regulations at 30 CFR 705.18 concerning
gifts and gratuities. Without the
language that we approved on July 17,
1995, the State rule at OAC 1501: 13–
1–03(J)(1) is substantively identical to
the counterpart Federal regulations at 30
CFR 705.18(a) concerning the
prohibitions against soliciting or
receiving gifts and gratuities. That is,
the Federal regulations do not require
that members of multi-interest boards
such as the Reclamation Commission
must comply with the prohibitions
against soliciting or receiving gifts and
gratuities at 30 CFR 705.18.
The Federal regulations at 30 CFR
705.4(d) do provide, however, that
members of multi-interest boards must
recuse themselves from proceedings
which may affect their direct or indirect
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26293
financial interests. The counterpart
State provision concerning recusal is
OAC 1501: 13–1–03(C). Additionally,
the Federal regulations at 30 CFR
705.11(a) provide that members of
multi-interest boards must file a
statement of employment and financial
interests. The counterpart State
provision concerning the requirement
for members of multi-interest boards to
file a statement of employment and
financial interests is OAC 1501: 13–1–
03(F)(1). Therefore, we find that the
removal of the words ‘‘and members of
the Reclamation Board of Review’’ from
OAC 1501: 13–1–03(J)(1) does not
render the Ohio provision less effective
than the counterpart Federal regulation
at 30 CFR 705.18(a) and can be
approved.
4. OAC 1501: 13–1–03(L)(1) Appeal of
Remedial Actions
In its September 22, 1994,
amendment, Ohio proposed to revise
paragraph (L)(1) to add 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. The State also deleted the
words ‘‘and such board’s hearing
officers’’ from the provision. We
approved the provisions on July 17,
1995.
On August 30, 2006, Ohio requested
that the amendment to paragraph (L)(1)
that we approved be withdrawn. The
existing State provision at OAC 1501:
13–1–03(L)(1), without the language that
the State has requested be removed from
the approved program, provides as
follows:
(1) Employees other than the chief of the
Division of Mineral Resources Management
and members of the reclamation commission
and such commission’s hearing officers may
file their appeal in writing with the chief,
who will conduct an informal hearing on the
merits.
The counterpart Federal regulations at
30 CFR 705.21(a) concerning appeals
procedures provide as follows:
(a) Employees other than the Head of the
State Regulatory Authority, may file their
appeal, in writing, through established
procedures within their particular State.
The Federal regulation at 30 CFR
705.21(a) that is quoted above provides
that conflict of interest appeal
procedures for employees within a State
should be governed by established
procedures within the State. That is, the
Federal conflict of interest provisions
provide that the State has the discretion
to establish its own appeal procedures.
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Additionally, the Federal regulations at
30 CFR 705.21(a) do not contain a
counterpart to the language that Ohio
wishes to be deleted from the approved
program, which provides that nothing in
the rule modifies any right of appeal of
the Chief’s decision that any employee
may have under State law. Therefore,
the removal of that language does not
render OAC 1501: 13–1–03(L)(1) less
effective than the Federal regulations at
30 CFR 705.21(a). Therefore, we find
that the existing State provision at OAC
1501: 13–1–03(L)(1) is not inconsistent
with the Federal conflict of interest
provisions at 30 CFR 705.21 and can be
approved.
5. OAC 1501: 13–1–03(L)(2) Appeal of
Remedial Actions
In its September 22, 1994,
amendment, Ohio proposed to revise
paragraph (L)(2) by deleting language so
that paragraph (L)(2) provides that only
the Chief of the Division of Reclamation
(currently the Division of Mineral
Resources Management) may appeal a
remedial action to the Director of OSM.
We approved the proposed deletion of
language on July 17, 1995.
On August 30, 2006, Ohio requested
that the proposed deletion at paragraph
(L)(2) that we approved be withdrawn.
As a result, the existing State provision
at OAC 1501: 13–1–03(L)(2) provides as
follows:
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(2) The chief of the Division of Mineral
Resources Management and members of the
reclamation commission and such
commission’s hearing officers may file their
appeal in writing, with the director of the
office of surface mining reclamation and
enforcement, who will refer it to the conflict
of interest appeals board within the United
States Department of the Interior.
Under paragraph (L)(2), therefore, the
Chief of the Division of Mineral
Resources Management, members of the
Reclamation Commission, and the
Commission’s hearing officers may file
their appeals of orders for remedial
action under paragraph (K) with OSM.
Under the Federal regulations, appeal
procedures for employees are specified
at 30 CFR 705.21(a), which provides
that employees may file their appeals
through established procedures within
their respective States. Under the
Federal regulations, appeal procedures
for the head of the regulatory authority
are specified at 30 CFR 705.21(b), which
provides that the head of the State
regulatory authority may file an appeal
with OSM who will refer it to the
Conflict of Interest Appeals Board
within the Department of the Interior.
Insofar as it applies to the Chief of the
Division of Mineral Resources
Management, who is the head of the
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Ohio Regulatory Authority, restored
paragraph (L)(2) is substantively
identical to, and therefore no less
effective than, the Federal regulations at
30 CFR 705.21(b). With respect to
Reclamation Commission hearing
officers, who are ‘‘employees’’ under
Ohio’s approved program, restored
paragraph (L)(2) is no less effective than
30 CFR 705.21(a), which allows States
to establish appeal procedures for all
employees except for the head of the
regulatory authority. For hearing
officers, the ‘‘established procedures’’ in
Ohio will be those applicable to the
United States Department of the
Interior’s Conflict of Interest Appeals
Board. Finally, there are no specific
Federal provisions concerning appeals
of conflict of interest decisions by
members of multiple interest boards,
such as members of Ohio’s Reclamation
Commission. However, nothing in
SMCRA or the Federal regulations
prohibits Ohio from allowing these
members to appeal these types of
decisions. Therefore, restored paragraph
(L)(2) is not inconsistent with SMCRA
or the Federal regulations insofar as it
applies to members of the Reclamation
Commission. For all of these reasons,
we are approving restored paragraph
(L)(2).
6. OAC 1501: 13–1–03(L)(3) Appeal of
Remedial Actions
In its September 22, 1994,
amendment, Ohio proposed to add new
paragraph (L)(3) to provide that
members of the Ohio Reclamation Board
of Review (currently the Reclamation
Commission) may request advisory
opinions from the Director of OSM on
issues pertaining to an apparent
prohibited financial interest. The
provision also stated that resolution of
conflicts is governed by section 1513.05
and 1513.29 of the Ohio Revised Code.
We approved the proposed new
language on July 17, 1995.
On August 30, 2006, Ohio requested
that the proposed new language at
paragraph (L)(3) that we approved be
withdrawn. As noted above at Finding
5, the existing Ohio provision at OAC
1501: 13–1–03(L)(2) provides that
members of the Reclamation
Commission and such Commission’s
hearing officers may file an appeal in
writing, with the Director of OSM.
Therefore, the provision that we
approved on July 17, 1995, at OAC
1501: 13–1–03(L)(3), which also
provides that members of the
Commission may request advisory
opinions from OSM is not necessary.
We find that the removal of paragraph
(L)(3) from the approved Ohio program
does not render the Ohio program less
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effective than the Federal regulations at
30 CFR 705.21 concerning appeal
procedures and can be approved. We
note that the language at paragraph
(L)(3) also provided that resolution of
conflicts is governed by section 1513.05
of the Ohio Revised Code. However, the
removal of paragraph (L)(3) from the
Ohio program does not negate the fact
that the provisions at ORC 1513.05 and
1513.29 continue to apply to the
Reclamation Commission.
IV. Summary and Disposition of
Comments
Public Comments
On October 19, 2006, we published a
Federal Register notice and asked for
public comments of the amendment
(Administrative Record Number OH–
OH–2187–01). No comments were
received.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and
section 503(b) of SMCRA, we requested
comments on the amendment from
various Federal agencies with an actual
or potential interest in the Ohio program
(Administrative Record Number OH–
2187–02). No comments were received.
Environmental Protection Agency (EPA)
Concurrence and Comments
Under 30 CFR 732.17(h)(11) (ii), we
are required to obtain written
concurrence from EPA for those
provisions of the program amendment
that relate to air or water quality
standards issued 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.). None of the revisions that
Ohio proposed to make in this
amendment pertain to air or water
quality standards. Therefore, we did not
ask EPA to concur on the amendment.
Under 30 CFR 732.17(h)(11)(i), we
requested comments on the amendment
from EPA (Administrative Record
Number OH–2187–02). No EPA
comments were received.
V. OSM’s Decision
Based on the above findings, we are
approving, the program amendment that
Ohio sent to us on August 30, 2006.
To implement this decision, we are
amending the Federal regulations at 30
CFR part 935, which codify decisions
concerning the Ohio program. We find
that good cause exists under 5 U.S.C.
553(d)(3) to make this final rule
effective immediately. Section 503(a) of
SMCRA requires that the State’s
program demonstrate that the State has
the capability of carrying out the
provisions of the Act and meeting its
purposes. Making this rule effective
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Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Rules and Regulations
immediately will expedite that process.
SMCRA requires consistency of State
and Federal standards.
VI. 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.
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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
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.
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13:44 May 08, 2007
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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 Federallyrecognized 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
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26295
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: March 15, 2007.
H. Vann Weaver,
Acting Regional Director, Appalachian
Region.
For the reasons set out in the
preamble, 30 CFR part 935 is amended
as set forth below:
I
PART 935—OHIO
1. The authority citation for part 935
continues to read as follows:
I
Authority: 30 U.S.C. 1201 et seq.
2. Section 935.15 is amended by
adding a new entry to the table in
chronological order by ‘‘Date of final
publication’’ to read as follows:
I
§ 935.15 Approval of Ohio regulatory
program amendments.
*
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*
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*
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Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Rules and Regulations
Original amendment submission date
Date of final publication
Citation/description
*
*
August 30, 2006 ................................................
*
*
*
May 9, 2007 ......................................................
*
*
OAC 1501:13–1–03(D)(2), (I)(1), (J)(1), (L)(1),
(L)(2), and the deletion of (L)(3).
[FR Doc. E7–8867 Filed 5–8–07; 8:45 am]
NPRM. As such, the event would occur
before the rulemaking process was
complete. Because of the dangers posed
by the pyrotechnics used in this
fireworks display, safety zones are
necessary to provide for the safety of
event participants, spectator craft, and
other vessels transiting the event area.
For the safety concerns noted, it is in
the public interest to have these
regulations in effect during the event.
For the same reasons listed in the
previous paragraph, under 5 U.S.C.
553(d)(3), the Coast Guard finds that
good cause exists for making this rule
effective less than 30 days after
publication in the Federal Register. Any
delay in the effective date of this rule
would expose mariners to the dangers
posed by the pyrotechnics used in this
fireworks display.
increase in size to encompass the
navigable waters around and under the
fireworks barge within a radius of 1,000
feet. Loading of the pyrotechnics onto
the fireworks barge is scheduled to
commence at 8 a.m. on May 10, 2007,
and will take place at Pier 50 in San
Francisco. Towing of the barge from Pier
50 to the display location is scheduled
to take place on May 12, 2007. During
the fireworks display, scheduled to
commence at 9 p.m. on May 12, 2007,
the fireworks barge will be located
approximately 1,000 feet off of Pier 30
in position 37°47.21′ N, 122°22.86′ W.
The effect of the temporary safety
zone will be to restrict general
navigation in the vicinity of the
fireworks barge while the fireworks are
loaded at Pier 50, during the transit of
the fireworks barge, and until the
conclusion of the scheduled display.
Except for persons or vessels authorized
by the Coast Guard Patrol Commander,
no person or vessel may enter or remain
in the safety zone. This safety zone is
needed to keep spectators and vessels a
safe distance away from the fireworks
barge to ensure the safety of
participants, spectators, and transiting
vessels.
BILLING CODE 4310–05–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[COTP San Francisco Bay 07–006]
RIN 1625–AA00
Safety Zone; KFOG ‘‘Kaboom’’
Fireworks Display, San Francisco Bay,
CA
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
SUMMARY: The Coast Guard is
establishing a temporary safety zone in
the navigable waters of San Francisco
Bay for the loading, transport, inactive
period, and launching of fireworks used
during the KFOG ‘‘KaBoom’’ Fireworks
Display to be held on May 12, 2007.
This safety zone is intended to prohibit
vessels and people from entering into or
remaining within the regulated areas in
order to ensure the safety of participants
and spectators.
DATES: This rule is effective from 8 a.m.
on May 10, 2007, to 9:30 p.m. on May
12, 2007.
ADDRESSES: Documents indicated in this
preamble as being available in the
docket, are part of docket COTP San
Francisco Bay 07–006 and are available
for inspection or copying at Coast Guard
Sector San Francisco, 1 Yerba Buena
Island, San Francisco, California, 94130,
between 9 a.m. and 4 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Ensign Sheral Richardson, U.S. Coast
Guard Sector San Francisco, at (415)
556–2950 extension 136.
SUPPLEMENTARY INFORMATION:
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Regulatory Information
We did not publish a notice of
proposed rulemaking (NPRM) for this
regulation. Under 5 U.S.C. 553(b)(B), the
Coast Guard finds that good cause exists
for not publishing an NPRM. Logistical
details surrounding the event were not
finalized and presented to the Coast
Guard in time to draft and publish an
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13:44 May 08, 2007
Jkt 211001
Background and Purpose
The San Francisco Radio Station
KFOG is sponsoring a brief fireworks
display on May 12, 2007 in the waters
of San Francisco Bay near Piers 30 and
32. The fireworks display is meant for
entertainment purposes in support of
KFOG’s annual festival in San
Francisco. This safety zone is being
issued to establish a temporary
regulated area in San Francisco Bay
around the fireworks launch barge
during the loading of the pyrotechnics,
during the transit of the barge to the
display location, inactive period, and
during the fireworks display. This
temporary regulated area around the
launch barge is necessary to protect
spectators, vessels, and other property
from the hazards associated with the
pyrotechnics on the fireworks barge.
The Coast Guard has granted the event
sponsor a marine event permit for the
fireworks display.
Discussion of Rule
The Coast Guard is establishing a
temporary safety zone on specified
waters off of the San Francisco
waterfront. During the loading of the
fireworks barge, while the barge is being
towed to the display location, and until
the start of the fireworks display, the
safety zone will apply to the navigable
waters around and under the fireworks
barge within a radius of 100 feet. Fifteen
minutes prior to and during the twentytwo minute fireworks display, the area
to which this safety zone applies to will
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Regulatory Evaluation
This rule is not a ‘‘significant
regulatory action’’ under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, and does not
require an assessment of potential costs
and benefits under section 6(a)(3) of that
Order. The Office of Management and
Budget has not reviewed it under that
Order.
Although this rule restricts access to
the waters encompassed by the safety
zone, the effect of this rule will not be
significant because the local waterway
users will be notified via public
broadcast notice to mariners to ensure
the safety zone will result in minimum
impact. The entities most likely to be
affected are pleasure craft engaged in
recreational activities.
Small Entities
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), we have considered
whether this rule would have a
significant economic impact on a
substantial number of small entities.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
E:\FR\FM\09MYR1.SGM
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]]>Agencies
[Federal Register Volume 72, Number 89 (Wednesday, May 9, 2007)]
[Rules and Regulations]
[Pages 26291-26296]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-8867]
=======================================================================
-----------------------------------------------------------------------
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, Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: We are approving an amendment to the Ohio regulatory program
(the ``Ohio program'') under the Surface Mining Control and Reclamation
Act of 1977 (SMCRA or the Act). This amendment is intended to remove
certain Conflict of Interest provisions from the approved Ohio program
that were previously approved by OSM but have not been promulgated by
Ohio through their rulemaking process.
EFFECTIVE DATE: May 9, 2007.
FOR FURTHER INFORMATION CONTACT: Mr. George Rieger, Chief, Pittsburgh
Field Division, Telephone: (717) 782-4036. E-mail: grieger@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Ohio Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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
[[Page 26292]]
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. Submission of the 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 amendments previously proposed by Ohio in Program Amendment
69. Ohio stated that those amendments of program amendment
69 related to Conflict of Interest have not been promulgated
by Ohio and are deemed to be no longer necessary. Therefore, Ohio
stated, it would like to withdraw the Conflict of Interest amendments
from consideration by OSM.
OSM approved the Conflict of Interest amendments that Ohio proposed
in program amendment 69 (including the subsequent revisions)
in the Federal Register on July 17, 1995 (60 FR 36352). Because we had
already published our approval of the Conflict of Interest provisions
that Ohio has requested be withdrawn from consideration, we were unable
to merely withdraw those provisions. Rather, we sought public comment
on whether the removal of the Conflict of Interest provisions that we
approved in 1995 would render the approved Ohio program less effective
than SMCRA and the Federal regulations.
Background Information: 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 those 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). We approved the amendments in the July 17, 1995, Federal
Register notice.
We announced receipt of Ohio's request that we remove the Conflict
of Interest provisions from the approved Ohio program in the October
19, 2006, Federal Register ( 71 FR 61695). In the same document, we
opened the public comment period and provided an opportunity for a
public hearing or meeting on the adequacy of the proposed amendment
(Administrative Record Number OH-2187-01). We did not hold a hearing or
meeting because no one requested one. The public comment period ended
on November 20, 2006. We received no comments.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment. Any revisions that we do not specifically
discuss below concern nonsubstantive minor wording, editorial, or
renumbering of sections changes, and are approved herein without
discussion.
Restrictions on Financial Interest of Employees. Ohio Administrative
Code (OAC) Section 1501:13-1-03
1. OAC 1501: 13-1-03(D)(2) Definition of ``Employee''
In its September 22, 1994, amendment, Ohio proposed to revise the
definition of ``Employee'' at paragraph (D)(2) to provide that members
of the Ohio Board (currently ``Council'') 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 (currently the Reclamation Commission) shall also be
included within the definition of ``employee.'' Ohio also proposed to
revise the appeal procedures at paragraphs (L)(1) and (2) to delete
separate references to the Reclamation Commission's hearing officers
because those hearing officers are to be included under the definition
of ``employee'' in this rule. We approved these revisions in our July
17, 1995, notice.
In its August 30, 2006, letter to OSM, Ohio requested that the
provisions that OSM approved on July 17, 1995, be withdrawn. Under this
request, therefore, neither members of the Council nor hearing officers
for the Reclamation Commission would be specifically identified as
``employees'' under the definition of ``employee'' at paragraph (D)(2).
To approve these deletions from the Ohio provisions that were approved
by OSM, we must determine whether the deletions render the Ohio program
less effective than the Federal definition of ``employee'' at 30 CFR
705.5.
The Federal definition of ``employee'' at 30 CFR 705.5 provides as
follows:
Employee. Means (a) any person employed by the State Regulatory
Authority who performs any function or duty under the Act, and (b)
advisory board or commission members and consultants who perform any
function or duty under the Act, if they perform decisionmaking
functions for the State Regulatory Authority under the authority of
State law or regulations. However, members of advisory boards or
commissions established in accordance with State law or regulations
to represent multiple interests are not considered to be employees.
State officials may through State law or regulations expand this
definition to meet their program needs.
The Ohio Revised Code (ORC) at section 1513.29 establishes the
Council. Under ORC 1513.29, the Council's duties involve gathering
information on unreclaimed strip mined lands, studying, and making
recommendations concerning eroded land within the State, including land
affected by strip mining for which no cash is held in the strip mining
reclamation fund. In addition, an Ohio Attorney General's Opinion from
1978 states that the Council ``has the authority as a matter of law to
fund reclamation projects on private lands pursuant to Chapter 1513 of
the Revised Code * * *.'' (Ohio Op. Atty Gen No. 78-016) That is,
members of the Council perform a function or duty under Chapter 1513 of
the Ohio Revised Code, and fall within the definition of ``employee''
in OAC 1501: 13-1-03. We find that the existing Ohio definition of
``employee'' which does not specifically identify members of the
Council as employees does not render the Ohio program less effective
than the Federal definition of ``employee'' at 30 CFR 705.5 and can be
approved.
Next, we will consider whether hearing officers for the Reclamation
Commission are considered employees under the Federal regulations. The
ORC at 1513.05 establishes the Reclamation Commission. That provision
also provides that ``The commission shall appoint one or more hearing
officers who shall be attorneys at law admitted to practice in this
state to conduct hearings under this chapter.'' Therefore, it is clear
that hearing officers for the Reclamation Commission are not members of
the Reclamation Commission, but are appointed by the
[[Page 26293]]
Reclamation Commission to conduct hearings. It is our understanding
that the hearing officer for the Reclamation Commission is an employee
of the Ohio Department of Natural Resources and is considered by that
department to be an ``employee'' under the Ohio definition of
``employee'' at OAC 1501: 13-1-03 and is required to file the
appropriate conflict of interest forms under OAC 1501: 13-1-03(I).
Therefore, we find that the existing Ohio definition of ``employee''
which does not specifically identify hearing officers for the
Reclamation Commission as employees does not render the Ohio program
less effective than the Federal definition of ``employee'' at 30 CFR
705.5 and can be approved. Our approval is based upon our understanding
noted above.
2. OAC 1501: 13-1-03(I)(1) Use of Financial Interest Statement Form by
Members of the Ohio Reclamation Commission
In its September 22, 1994, amendment, Ohio proposed to revise
paragraph (I)(1) to add that members of the Ohio Reclamation Board of
Review (currently Reclamation Commission) shall report all required
information concerning employment and financial interests on Form OSM-
23. We approved the provisions on July 17, 1995. On August 30, 2006,
Ohio requested that its amendments to paragraph (I)(1) that we approved
in 1995 be withdrawn. In effect, the phrase ``and members of the
Reclamation Board of Review'' (currently the Reclamation Commission)
will be deleted from provision concerning what to file at OAC 1501: 13-
1-03(I)(1).
The Federal regulations at 30 CFR 705.11(a) provide that employees
and members of advisory boards and commissions established in
accordance with State laws or regulations to represent multiple
interests, who perform a function or duty under SMCRA, must file a
statement of employment and financial interests. The Ohio Reclamation
Commission is such a multi-interest advisory board and, therefore, must
file a statement of employment and financial interests.
The current Ohio provision at OAC 1501: 13-1-03(F)(1), concerning
who shall file, provides that members of the Reclamation Commission are
required to file a statement of employment and financial interests.
Therefore, despite the fact that OAC 1501: 13-1-03(I)(1) concerning
what to file does not specifically mention members of the Reclamation
Commission, the Commission members are required to file by Ohio's
regulations. Therefore, we find that the existing Ohio provision at OAC
1501: 13-1-03(I)(1), despite the fact that it does not specifically
mention members of the Reclamation Commission definition, does not
render the Ohio program less effective than the Federal regulations at
30 CFR 705.11(a) and can be approved.
We note that OAC 1501: 13-1-03(I)(1) provides that the report shall
be on ``OSM Form 705-1'' as provided by OSM. This form number is not
correct. The form that OSM will provide for reporting financial
interests is OSM ``Form 23.''
3. OAC 1501: 13-1-03(J)(1) Acceptance of Gifts and Gratuities by
Members of the Ohio Reclamation Commission
In its September 22, 1994, amendment, 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 (currently Reclamation Commission) 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 Reclamation Commission members' official
duties. We approved the provisions on July 17, 1995.
On August 30, 2006, Ohio requested that its amendments to paragraph
(J)(1) that we approved be withdrawn. In effect, the phrase ``and
members of the Reclamation Board of Review'' will be deleted from the
approved Ohio program at OAC 1501: 13-1-03(J)(1) concerning gifts and
gratuities. Despite the fact that the Ohio provision at OAC 1501: 13-1-
03(J)(1) does not prohibit members of the Reclamation Commission from
soliciting or accepting gifts or any other thing of monetary value, the
Ohio program is not rendered less effective than the Federal
regulations at 30 CFR 705.18 concerning gifts and gratuities. Without
the language that we approved on July 17, 1995, the State rule at OAC
1501: 13-1-03(J)(1) is substantively identical to the counterpart
Federal regulations at 30 CFR 705.18(a) concerning the prohibitions
against soliciting or receiving gifts and gratuities. That is, the
Federal regulations do not require that members of multi-interest
boards such as the Reclamation Commission must comply with the
prohibitions against soliciting or receiving gifts and gratuities at 30
CFR 705.18.
The Federal regulations at 30 CFR 705.4(d) do provide, however,
that members of multi-interest boards must recuse themselves from
proceedings which may affect their direct or indirect financial
interests. The counterpart State provision concerning recusal is OAC
1501: 13-1-03(C). Additionally, the Federal regulations at 30 CFR
705.11(a) provide that members of multi-interest boards must file a
statement of employment and financial interests. The counterpart State
provision concerning the requirement for members of multi-interest
boards to file a statement of employment and financial interests is OAC
1501: 13-1-03(F)(1). Therefore, we find that the removal of the words
``and members of the Reclamation Board of Review'' from OAC 1501: 13-1-
03(J)(1) does not render the Ohio provision less effective than the
counterpart Federal regulation at 30 CFR 705.18(a) and can be approved.
4. OAC 1501: 13-1-03(L)(1) Appeal of Remedial Actions
In its September 22, 1994, amendment, Ohio proposed to revise
paragraph (L)(1) to add 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. The State also deleted the words ``and such board's hearing
officers'' from the provision. We approved the provisions on July 17,
1995.
On August 30, 2006, Ohio requested that the amendment to paragraph
(L)(1) that we approved be withdrawn. The existing State provision at
OAC 1501: 13-1-03(L)(1), without the language that the State has
requested be removed from the approved program, provides as follows:
(1) Employees other than the chief of the Division of Mineral
Resources Management and members of the reclamation commission and
such commission's hearing officers may file their appeal in writing
with the chief, who will conduct an informal hearing on the merits.
The counterpart Federal regulations at 30 CFR 705.21(a) concerning
appeals procedures provide as follows:
(a) Employees other than the Head of the State Regulatory
Authority, may file their appeal, in writing, through established
procedures within their particular State.
The Federal regulation at 30 CFR 705.21(a) that is quoted above
provides that conflict of interest appeal procedures for employees
within a State should be governed by established procedures within the
State. That is, the Federal conflict of interest provisions provide
that the State has the discretion to establish its own appeal
procedures.
[[Page 26294]]
Additionally, the Federal regulations at 30 CFR 705.21(a) do not
contain a counterpart to the language that Ohio wishes to be deleted
from the approved program, which provides that nothing in the rule
modifies any right of appeal of the Chief's decision that any employee
may have under State law. Therefore, the removal of that language does
not render OAC 1501: 13-1-03(L)(1) less effective than the Federal
regulations at 30 CFR 705.21(a). Therefore, we find that the existing
State provision at OAC 1501: 13-1-03(L)(1) is not inconsistent with the
Federal conflict of interest provisions at 30 CFR 705.21 and can be
approved.
5. OAC 1501: 13-1-03(L)(2) Appeal of Remedial Actions
In its September 22, 1994, amendment, Ohio proposed to revise
paragraph (L)(2) by deleting language so that paragraph (L)(2) provides
that only the Chief of the Division of Reclamation (currently the
Division of Mineral Resources Management) may appeal a remedial action
to the Director of OSM. We approved the proposed deletion of language
on July 17, 1995.
On August 30, 2006, Ohio requested that the proposed deletion at
paragraph (L)(2) that we approved be withdrawn. As a result, the
existing State provision at OAC 1501: 13-1-03(L)(2) provides as
follows:
(2) The chief of the Division of Mineral Resources Management
and members of the reclamation commission and such commission's
hearing officers may file their appeal in writing, with the director
of the office of surface mining reclamation and enforcement, who
will refer it to the conflict of interest appeals board within the
United States Department of the Interior.
Under paragraph (L)(2), therefore, the Chief of the Division of
Mineral Resources Management, members of the Reclamation Commission,
and the Commission's hearing officers may file their appeals of orders
for remedial action under paragraph (K) with OSM.
Under the Federal regulations, appeal procedures for employees are
specified at 30 CFR 705.21(a), which provides that employees may file
their appeals through established procedures within their respective
States. Under the Federal regulations, appeal procedures for the head
of the regulatory authority are specified at 30 CFR 705.21(b), which
provides that the head of the State regulatory authority may file an
appeal with OSM who will refer it to the Conflict of Interest Appeals
Board within the Department of the Interior. Insofar as it applies to
the Chief of the Division of Mineral Resources Management, who is the
head of the Ohio Regulatory Authority, restored paragraph (L)(2) is
substantively identical to, and therefore no less effective than, the
Federal regulations at 30 CFR 705.21(b). With respect to Reclamation
Commission hearing officers, who are ``employees'' under Ohio's
approved program, restored paragraph (L)(2) is no less effective than
30 CFR 705.21(a), which allows States to establish appeal procedures
for all employees except for the head of the regulatory authority. For
hearing officers, the ``established procedures'' in Ohio will be those
applicable to the United States Department of the Interior's Conflict
of Interest Appeals Board. Finally, there are no specific Federal
provisions concerning appeals of conflict of interest decisions by
members of multiple interest boards, such as members of Ohio's
Reclamation Commission. However, nothing in SMCRA or the Federal
regulations prohibits Ohio from allowing these members to appeal these
types of decisions. Therefore, restored paragraph (L)(2) is not
inconsistent with SMCRA or the Federal regulations insofar as it
applies to members of the Reclamation Commission. For all of these
reasons, we are approving restored paragraph (L)(2).
6. OAC 1501: 13-1-03(L)(3) Appeal of Remedial Actions
In its September 22, 1994, amendment, Ohio proposed to add new
paragraph (L)(3) to provide that members of the Ohio Reclamation Board
of Review (currently the Reclamation Commission) may request advisory
opinions from the Director of OSM on issues pertaining to an apparent
prohibited financial interest. The provision also stated that
resolution of conflicts is governed by section 1513.05 and 1513.29 of
the Ohio Revised Code. We approved the proposed new language on July
17, 1995.
On August 30, 2006, Ohio requested that the proposed new language
at paragraph (L)(3) that we approved be withdrawn. As noted above at
Finding 5, the existing Ohio provision at OAC 1501: 13-1-03(L)(2)
provides that members of the Reclamation Commission and such
Commission's hearing officers may file an appeal in writing, with the
Director of OSM. Therefore, the provision that we approved on July 17,
1995, at OAC 1501: 13-1-03(L)(3), which also provides that members of
the Commission may request advisory opinions from OSM is not necessary.
We find that the removal of paragraph (L)(3) from the approved Ohio
program does not render the Ohio program less effective than the
Federal regulations at 30 CFR 705.21 concerning appeal procedures and
can be approved. We note that the language at paragraph (L)(3) also
provided that resolution of conflicts is governed by section 1513.05 of
the Ohio Revised Code. However, the removal of paragraph (L)(3) from
the Ohio program does not negate the fact that the provisions at ORC
1513.05 and 1513.29 continue to apply to the Reclamation Commission.
IV. Summary and Disposition of Comments
Public Comments
On October 19, 2006, we published a Federal Register notice and
asked for public comments of the amendment (Administrative Record
Number OH-OH-2187-01). No comments were received.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies with
an actual or potential interest in the Ohio program (Administrative
Record Number OH-2187-02). No comments were received.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11) (ii), we are required to obtain written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued 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.). None of the revisions that Ohio proposed to make
in this amendment pertain to air or water quality standards. Therefore,
we did not ask EPA to concur on the amendment.
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from EPA (Administrative Record Number OH-2187-02). No EPA
comments were received.
V. OSM's Decision
Based on the above findings, we are approving, the program
amendment that Ohio sent to us on August 30, 2006.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 935, which codify decisions concerning the Ohio program.
We find that good cause exists under 5 U.S.C. 553(d)(3) to make this
final rule effective immediately. Section 503(a) of SMCRA requires that
the State's program demonstrate that the State has the capability of
carrying out the provisions of the Act and meeting its purposes. Making
this rule effective
[[Page 26295]]
immediately will expedite that process. SMCRA requires consistency of
State and Federal standards.
VI. 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 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: March 15, 2007.
H. Vann Weaver,
Acting Regional Director, Appalachian Region.
0
For the reasons set out in the preamble, 30 CFR part 935 is amended as
set forth below:
PART 935--OHIO
0
1. The authority citation for part 935 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 935.15 is amended by adding a new entry to the table in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 935.15 Approval of Ohio regulatory program amendments.
* * * * *
[[Page 26296]]
------------------------------------------------------------------------
Original amendment Date of final
submission date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
August 30, 2006............. May 9, 2007......... OAC 1501:13-1-
03(D)(2), (I)(1),
(J)(1), (L)(1),
(L)(2), and the
deletion of (L)(3).
------------------------------------------------------------------------
[FR Doc. E7-8867 Filed 5-8-07; 8:45 am]
BILLING CODE 4310-05-P
