Ohio Regulatory Program, 26291-26296 [E7-8867]

Download as PDF 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. rmajette on PROD1PC67 with RULES 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 VerDate Aug<31>2005 13:44 May 08, 2007 Jkt 211001 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 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 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 E:\FR\FM\09MYR1.SGM 09MYR1 26292 Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Rules and Regulations rmajette on PROD1PC67 with RULES 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 VerDate Aug<31>2005 13:44 May 08, 2007 Jkt 211001 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’’ PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 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 E:\FR\FM\09MYR1.SGM 09MYR1 Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Rules and Regulations rmajette on PROD1PC67 with RULES 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 VerDate Aug<31>2005 13:44 May 08, 2007 Jkt 211001 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 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 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. E:\FR\FM\09MYR1.SGM 09MYR1 26294 Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / Rules and Regulations 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: rmajette on PROD1PC67 with RULES (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 VerDate Aug<31>2005 13:44 May 08, 2007 Jkt 211001 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 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 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 E:\FR\FM\09MYR1.SGM 09MYR1 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. rmajette on PROD1PC67 with RULES 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. VerDate Aug<31>2005 13:44 May 08, 2007 Jkt 211001 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 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 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. * E:\FR\FM\09MYR1.SGM * * 09MYR1 * * 26296 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: rmajette on PROD1PC67 with RULES 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 VerDate Aug<31>2005 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 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 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 09MYR1

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]


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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, Interior.

ACTION: Final rule; approval of amendment.

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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